McClelland v. Kirkpatrick
Filing
22
DECISION AND ORDER. Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED, and the petition is DISMISSED. Because Petitioner has failed to make a substantial showing of a denial of a constitutional right, 28 U.S.C. § 2253(c)(2), no certificate of appealability shall issue. Signed by Hon. Victor E. Bianchini on 4/21/2011. (Clerk to close case.)(SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
CARL McCLELLAND,
Petitioner,
DECISION AND ORDER
No. 08-CV-0683(VEB)
-vsROBERT KIRKPATRICK, Superintendent,
Wende Correctional Facility,
Respondent.
___________________________________
I.
Introduction
Pro se petitioner Carl McClelland (“McClelland” or “Petitioner”) has filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his
custody following a judgment of conviction entered against him in Erie County Court, after a
jury trial, on charges of second degree burglary, fifth degree criminal possession of stolen
property, and possession of burglar’s tools. McClelland is currently serving an indeterminate
sentence of 20 years to life.
The parties have consented to final disposition of this matter by a magistrate judge
pursuant to 28 U.S.C. § 636(c)(1). (Docket No. 9).
For the reasons that follow, McClelland’s request for a writ of habeas corpus is denied
and the petition is dismissed.
II.
Factual Background and Procedural History
A.
The Suppression Hearing
Testimony elicited at the suppression hearing revealed that at 5:00 a.m. on August 15,
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2003, Buffalo Police Officer Ronald Ammerman was in his patrol car at Humboldt Parkway and
Goulding in the city of Buffalo, when he saw a New York State Police cruiser coming
toward him. (SH.8; numbers in parentheses preceded by “SH.” refer to pages of the suppression
hearing transcript). Officer Ammerman contemporaneously observed McClelland riding a bicycle
in the street. It seemed to Officer Ammerman that McClelland was avoiding the trooper’s car. As
McClelland did so, he “made a jog” up into a driveway and almost fell off the bicycle. (SH.8).
When the trooper’s car passed by, Officer Ammerman approached Petitioner who was still in the
driveway. He was “kind of juggling” two bags and trying to get back up on the bicycle. (SH.10).
Speaking to Petitioner from inside his patrol car, Officer Ammerman asked Petitioner
how he was doing; Petitioner responded, “Good.” When asked where he was going, Petitioner
said he was headed home, explaining that he was coming from his daughter’s house and that he
was moving to a new residence. (SH.12). Thinking that it was “strange” that Petitioner was
moving at 5:00 a.m., Officer Ammerman inquired of Petitioner what he had in the bags;
Petitioner responded, “Oils.” (SH.12). Officer Ammerman then asked Petitioner if he would
mind if he looked in the bags. Petitioner said no, he would not mind, and handed the bags to
Officer Ammerman. (SH.12).
Inside the bags Officer Ammerman found several bottles of perfume and cologne. When
he asked Petitioner to name some of the perfumes in the bags, Petitioner responded, “CK One.”
However, there was no bottle of CK One in the bag. (SH.12). Asked to name another, Petitioner
told Officer Ammerman that he could not because the officer was making him nervous. (SH.12).
Petitioner then stated that the perfumes were his. He contradicted himself, though, saying that
they belonged to his daughter. (SH.12). Officer Ammerman testified that during this
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conversation, he remained inside his car; that Petitioner was free to leave; and that Petitioner
never said that he did not want to talk to him any further. (SH.13).
Based upon the contradictions in Petitioner’s statements, Officer Ammerman got out of
his car and told Petitioner that if he had obtained the bags from an abandoned home, to tell him
(Officer Ammerman) and not waste his time. (SH.14). Petitioner said that he had, but was
unable to give Officer Ammerman the location of the purported house. Petitioner was also unable
to give the officer his daughter’s address, from which he claimed he had been moving. (SH.14).
While Officer Ammerman was talking to Petitioner, a man (later identified as Carl
DuBois (“DuBois”), the owner of 717 Humboldt Parkway) approached, pointed to the colognes
on the trunk of the patrol car and said, “Hey, that’s my stuff, my house was burglarized.”
(SH.15). Officer Ammerman recalled that DuBois stated that he had come home and found his
side windows broken and items missing from his home. Seeing the flashing lights on Officer
Ammerman’s patrol car, DuBois had come to report the burglary. (SH.15-16).
After DuBois was able to identify the contents of the bags without looking inside them,
Petitioner was arrested and advised of his Miranda warnings which he acknowledged he
understood. (SH.17). At that time, Officer Ammerman told Petitioner to “make it easy on him”
and asked him to whom the property belonged. Petitioner nodded toward DuBois and DuBois’s
wife, who were both standing nearby. (SH.18).
Officer Ammerman testified that while at the scene, a fellow police officer asked
Petitioner why he broke the window of the home. Petitioner denied doing so, stating that the door
was open and that he had “tapped it.” (SH.19).
While being booked at the precinct, and overhearing that the charges would include
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burglary, Petitioner responded that it would only be trespassing because he had not been
caught inside. (SH.19).
Following the hearing, the trial court ruled that the tangible evidence would not be
suppressed. The trial court further ruled that Petitioner’s statements to the police would be
admissible at trial.
B.
The Trial
What follows is a brief summary of the evidence adduced by the prosecution at trial,
which commenced on August 3, 2004.
Buffalo Police Officer Ronald Ammerman was on patrol in the vicinity of Humboldt
Parkway and Goulding at 5:00 a.m. on August 15, 2003, when he observed McClelland riding a
bicycle down Humboldt Parkway. T.101 (Numbers preceded by “T.” refer to pages of the trial
transcript.) As a New York State police vehicle approached, Petitioner made what appeared to
Officer Ammerman to be a “furtive” movement into a nearby driveway in an attempt to avoid the
trooper’s car. T.101. Officer Ammerman pulled his car over to speak to McClelland who had two
or three bags and was straddling the bicycle at the end of the driveway. T.104-105. Officer
Ammerman asked McClelland his name, what he was doing and where he was coming from and
where he was headed. T.105. Petitioner provided his name and said that he was moving from his
daughter’s house. T.106.
In response to the officer’s inquiry concerning the contents of the bags, Petitioner
responded “Oils.” T.106. When the officer asked if he could look inside the bags, McClelland
acceded and handed the bags over. T.106. Officer Ammerman saw that the bags contained
several bottles of cologne and perfume, as well as a flashlight and pair of gloves. T.106, 108.
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Officer Ammerman recalled that he asked Petitioner to name one of the perfumes and Petitioner
responded “CK One.” Not finding any bottles of CK One in the bags, Officer Ammerman asked
Petitioner to name another. Petitioner told him that he could not because Officer Ammerman was
making him nervous. T.107. Noting the contradictions in petitioner’s explanations, Officer
Ammerman told Petitioner not to waste his time and to admit it if he had gotten the bags from an
abandoned house. T.107. Petitioner stated that he had; however, he was unable to give the
location or address of the house. T.107.
At this time, Officer Ammerman, believing that “defendant had stuff he shouldn’t have,”
got out of his car to continue his conversation with Petitioner. A man, later identified as Carl
DuBois, approached Petitioner and Officer Ammerman. Pointing to the contents of the bags
spread out on the trunk of the police car, DuBois announced, “That’s my stuff.” T.108-109.
DuBois informed Officer Ammerman that his home had been burglarized. T.109.
After placing Petitioner under arrest and advising him of his Miranda rights, Officer
Ammerman asked Petitioner the name of the person to whom the property. Petitioner nodded
toward BuBois who was standing nearby and said, “Him.” T.112. Officer Ammerman further
testified that while Petitioner was being booked at police headquarters, he overheard Petitioner
talking to the report technician concerning the burglary charge to be filed. Petitioner told the
report technician that it was not a burglary and that the charge would be reduced to trespass
because he had “not been caught inside.” T.113.
Toni DuBois (“Mrs. DuBois”) testified that she owned and was living at 717 Humboldt
Parkway, a single family home, with her husband and two children on August 15, 2003. T.38. At
some time between 6:00 and 6:30 p.m., Mrs. DuBois and her family left to go to their
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rental property at 30 Sweet Street where they were performing repairs in preparation for a
housing inspection. T.39-40. Mrs. DuBois locked the doors and windows at 717 Humboldt and
turned on the security system. T.51. Mrs. DuBois finished working on the rental property the next
morning and left there some time between 4:50 and 5:00 a.m. for the ten-minute ride home. T.
42. Upon their arrival at 717 Humboldt, DuBois dropped his wife off and went to park the car.
Mrs. DuBois heard her burglar alarm blaring, and noticed that the side window on her front door
was broken. T.43-44. The front door was open and the lights were on in the house. T.43. Mrs.
DuBois turned around and went to find her husband to tell him of her discovery. She further
testified that she reminded him of the police car they had seen on the corner while coming home,
and told him to go and report the burglary. T.46.
Mrs. DuBois, upon entering the house, found it “ransacked, items all over the floor,
papers everywhere and stuff missing.” T.46. A Wal-Mart bag containing her son’s school
clothes, an iron and other items, which she had left by the front door earlier that night, was
missing. T.46. As she walked through the house, Mrs. DuBois discovered that other property
was missing. She identified People’s Exhibit 1 as her daughter’s bag which the police returned to
her, and recalled that the police recovered two jewelry boxes, a camera, an iron and several
bottles of perfume and cologne. T.48-49. Several other items which were missing were never
recovered. T.51.
Carl DuBois’ testified that after his wife alerted him to the burglary, he walked to the
corner and approached the police car where the officer was talking to a man at the rear of the car.
T.73-74. DuBois recalled that he saw his wife’s bag (People’s Exhibit 1) on the trunk of the
police car along with other items including his Louis Vuitton belt, an iron, and several bottles of
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cologne. T.75. DuBois recalled that he had received a phone call from a friend who said that he
had been to his home at 717 Humboldt Parkway looking for him at 12:30 a.m., at which time, the
friend told him, the alarm had not been sounding. T.84.
B.
Verdict and Sentencing
The jury returned a verdict convicting McClelland as charged in the indictment. Based
upon McClelland’s recidivist status as a persistent felony offender under New York Penal Law §
70.10, the trial court sentenced him on November 12, 2004, to the maximum allowable term–25
years to life.
C.
The C.P.L. § 440.10 Motion
While McClelland’s appeal was pending before Appellate Division, Fourth Department,
of New York State Supreme Court, McClelland filed a pro se motion for vacatur in the trial
court on July 14, 2006, asserting, inter alia, that trial counsel was ineffective in failing to provide
effective representation at the suppression hearing. The trial judge summarized McClelland’s
allegations as follows: (1) prior to the suppression hearing, he informed trial counsel that he had
been handcuffed, searched, and placed in the police vehicle prior to Officer Ammerman having
searched through the two bags Petitioner was carrying on his bicycle handlebars; (2) Petitioner
requested that trial counsel move to re-open the suppression hearing after bringing to counsel’s
attention (a) the contents of a Buffalo Police Department document entitled “Calls-For-Service
Inquiry Response” and (b) the misdemeanor criminal information signed by Officer Wendy
Collier, Officer Ammerman’s partner, which had been turned over to the defense during
discovery.
McClelland argued that the “Calls-For-Service Inquiry Response”, in which the officers
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reported that DuBois identified the stolen items at 5:23 a.m., demonstrated that the officers
arrested him prior to learning that the property was stolen. According to the misdemeanor
information filled out by Officer Collier, the “gloves were recovered in the defendants [sic] left
rear pants pocket”, which contradicted Officer Ammerman’s testimony that he found the gloves
and a flashlight in one of the bags. McClelland concluded that trial counsel should have moved
to re-open the suppression hearing and used the Calls-For-Service Inquiry Response, the
misdemeanor information, and Officer Collier’s expected testimony to establish that the police
did not have probable cause to arrest McClelland at the time the bags and the gloves were seized.
As to trial counsel’s performance at the hearing, the trial judge found that trial counsel
“fully cross-examined Officer Ammerman with regard to the initial stop of the defendant and the
sequence of the event that followed, attempting to show that Ammerman’s recollection was
faulty, and that defendant was actually arrested and placed in the police vehicle prior to the
victim’s identifying the property.” C.P.L. § 440.10 Order at p. 3. Trial counsel furthermore made
appropriate arguments at the conclusion of the hearing urging the suppression of the seized
property and McClelland’s statements as the fruits of an unlawful stop. The trial judge concluded
that “counsel effectively represented defendant at the suppression hearing (People v. Baldi, 54
N.Y.2d 137).” Id.
With regard to counsel’s failure to move to re-open the suppression hearing, the trial
judge found that there was “no merit” to McClelland’s assertion of error:
The allegation that the bags and the burglar’s tools were seized prior to the police
having probable cause to arrest is made solely by the defendant and not supported
by the exhibits. Neither the Inquiry Response From [sic] nor the misdemeanor
information are availing. . . . The Inquiry Response does not contain any notation
to the effect that defendant was arrested prior to the victim’s identification of the
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property at 5:23 A.M. The misdemeanor information states that the gloves were
found in defendant’s left rear pants pocket, contradicting Officer Ammerman’s
testimony that the gloves were found in one of the bags. However, even if
Ammerman’s testimony were inaccurate, the misdemeanor complaint does not
exclude the possibility that the gloves were seized incident to a lawful arrest.
Based upon this analysis, there was no viable basis for a motion to re-open the
suppression hearing.
C.P.L. § 440.10 Motion at pp. 3-4.1
With regard to trial counsel’s alleged failure to inform McClelland that if he were
convicted of second degree burglary he could be receive an enhanced sentence with a maximum
term of life imprisonment, the trial judge found that it was “belied by the record wherein the
possibility of his being sentenced as a persistent violent felony offender and the mandatory
sentence range therefore were discussed.” C.P.L. § 440.10 Motion at p. 4.
Finally, the trial judge found to be a matter of record McClelland’s allegation that trial
counsel erroneously failed to “challenge the denial of suppression because the court did not set
forth findings of fact, conclusions of law and the reasons for its determination . . . .” Id. The trial
judge dismissed both claims because the Appellate Division was “in a position to review both the
1
New York’s Criminal Procedure Law provides as follows with regard to the re-opening of
suppression motions :
If after a pre-trial determination and denial of the motion the court is satisfied, upon a showing by
the defendant, that additional pertinent facts have been discovered by the defendant which he could
not have discovered with reasonable diligence before the determination of the motion, it may
permit him to renew the motion before trial or, if such was not possible owing to the time of the
discovery of the alleged new facts, during trial.
N.Y. Crim. Proc. § 710.40(4). “In applying this procedural rule, New York law employs a general presumption that a
defendant ‘know[s] the circumstances of his or her own arrest and therefore is capable of eliciting evidence of those
circumstances at a pretrial hearing.’” Greaves v. Brown, No. 06 CV 3524(ARR), 2007 W L 1232077, at *5
(E.D.N.Y. Apr. 26, 2007) (unpublished opn.) (quoting People v. Velez, 829 N.Y.S.2d 209, 2007 N.Y.App. Div.
LEXIS 1455, at *9 (App. Div. 2d Dept. Feb. 6, 2007) (collecting cases) (finding that trial court should have
reopened suppression hearing since defendant offered new facts beyond the scope of his knowledge of the
circumstances of his arrest)).
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determination itself and counsel’s failure to object.” Id.
D.
The Direct Appeal
Represented by new counsel, McClelland presented three issues for review on direct
appeal: the suppression motion was erroneously denied; the sentence was harsh and excessive;
and the verdict for second degree burglary was against the weight of the evidence. On December
22, 2006, the Appellate Division affirmed the judgment of conviction but modified the sentence.
The Appellate Division extensively reviewed the suppression issue and concluded that
the trial court properly denied those parts of McClelland’s suppression motion seeking to
suppress physical evidence and his statements to the police. People v. Willie White, a/k/a, Carl
McClelland, 35 A.D.3d 1263, 1264 (App. Div. 4th Dept. 2006). To validate a stop under the
common-law “power to inquire,” the reviewing court must examine the knowledge possessed by
the police officer at the given moment and any reasonable inferences to be drawn from that
knowledge. E.g., People v. DeBour, 40 N.Y.2d 210, 215 (N.Y. 1976).
The Appellate Division held that each stage of the encounter between Officer Ammerman
and McClelland was justified under DeBour. 35 A.D.3d at 1264 (citing People v. Bour, 40
N.Y.2d at 215). That court implicitly rejected McClelland’s contention that the initial encounter
constituted a “stop” as contemplated by Terry v. Ohio, 392 U.S. 1 (1968); People v. Cantor, 36
N.Y.2d 106 (1975). Instead, it was the lowest level of police intrusion as enunciated in DeBour
and its progeny–namely, a request for information which need only be justified by an “objective,
credible reason not necessarily indicative of criminality.” People v. Ocasio, 85 N.Y.2d 982, 985
(N.Y. 1995) (citing People v. Hollman, 79 N.Y.2d 181, 187, 194 (N.Y. 1992).
Thus,“[b]efore the police may stop a person pursuant to the common-law right to inquire
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there must exist at that moment a founded suspicion that criminal activity is present. The police
may not justify a stop by a subsequently acquired suspicion resulting from the stop.” Id. at 216
(internal citations omitted). The Appellate Division concluded that the observations of
McClelland riding a bicycle down the street at 5:00 a.m. and making furtive movements to avoid
a State Trooper vehicle “provided a founded suspicion that criminal activity was afoot and thus
justified the second level of intrusion” under DeBour, “i.e., a detention short of a forcible
seizure” for the purpose of obtaining “explanatory information.” People v. McClelland, 35
A.D.3d at 1264 (citations omitted).
Petitioner had stopped in the driveway of his own accord prior to the officer’s approach.
The officer did not get out of his car and chase Petitioner, draw his gun, direct Petitioner to stop,
or physically detain Petitioner in any way. This brief encounter, in which the officer elicited
Petitioner’s name, where he was going and coming from and what he was doing, was not a
violent or forcible apprehension, and it did not interfere with Petitioner’s liberty of movement.
See, People v DeBour at 216; People v Cantor at 106, 111; People v Bora, 83 N.Y.2d 531 (1994).
Under these circumstances, the prosecution argued, no “reasonable person would have believed
that he was not free to leave.” Florida v. Royer, 460 U.S. 491, 502 (1983).
The Appellate Division concluded that the next level of intrusion under DeBour was
justified on the basis of McClelland’s “inconsistent answers” and what happened when the police
officer, with McClelland’s consent, looked into the bags: McClelland could not list the contents
of the bags, and a pair of gloves and a flashlight was found in one of them. The Appellate
Division concluded that these circumstances gave rise to a “reasonable suspicion” that
McClelland had committed a crime, thereby allowing the police to forcibly detain him. People v.
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McClelland, 35 A.D.3d at 1264 (citing People v. DeBour, 40 N.Y.3d at 223). Petitioner, who was
not in custody, freely and voluntarily gave his consent for the officer to look in the bags. See,
People v Rogers, 259 A.D.2d 398 (1st Dept 1999), lv denied 93 N.Y.2d 1005 (common law
inquiry including request to view contents of plastic bag defendant holding viewed lawful);
People v Boyd, 91 A.D.2d 1045 (2nd Dept 1983) (officer’s inquiry about contents of defendant’s
bag properly based on common law right to inquire). No gun was drawn and the officer’s
inquiries prior to the consent were brief and non-confrontational. Moreover, petitioner has a long
history of contact with law enforcement authorities which is some indication that his consent was
“more likely to be the product of calculation rather than awe.” People v Gonzalez, 39 N.Y.2d 122
(1976); People v Ruiz, 188 A.D.2d 495 (2nd Dept 1992), lv denied 81 N.Y.2d 892. Notably, it
was petitioner’s own conduct that provided the officer with a reasonable suspicion of criminality.
Petitioner’s contradictions concerning the contents of the bag, who it belonged to and where he
had gotten it, provided the officer with reasonable suspicion to believe that criminal activity was
at hand.
The third and final level of acceptable intrusion under DeBour was justified once one of
the burglary victims approached the police and McClelland and identified some of the stolen
items as belonging to him. The Appellate Division found that this set of circumstances gave the
police officer probable cause to arrest McClelland. People v. McClelland, 35 A.D.3d at 1264
(citing People v. DeBour, 40 N.Y.3d at 223).
In addition, the Appellate Division found that the verdict for second degree burglary was
not against the weight of the evidence. Finding the 25-year-to-life sentence for second degree
burglary was unduly harsh and severe, the Appellate Division reduced it in the interest of justice
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under New York Criminal Procedure Law (“C.P.L.”) § 470.15(6)(b) to an indeterminate term of
20 years to life
The New York Court of Appeals denied leave to appeal on April 9, 2007.
E.
The Federal Habeas Proceeding
This timely Section 2254 habeas petition followed, in which McClelland raises the same
three grounds for relief as he asserted on direct appeal. (Docket No. 1). Respondent answered the
petition. (Docket Nos. 6 & 7). After Petitioner filed his reply memorandum of law (Docket No.
8), he also filed a request for a subpoena duces tecum (Docket No. 10) to obtain a copy of the call
to 911 emergency services made in connection with the investigation into the crimes for which
he was convicted. Petitioner’s argument was based on his assertion that Officer Ammerman, the
arresting officer did not learn of the burglary until after Petitioner was required to disclose the
contents of two bags containing property stolen from the burglarized residence while detained at
police headquarters. Petitioner also argued that he was required to make an incriminating
statement prior to 5:23 a.m., the time when the burglary allegedly was reported to the police in
the putative 911 call.
Magistrate Judge Foschio issued an order directing Respondent to respond to
McClelland’s request for the subpoena. (Docket No. 11).
Respondent’s attorney filed an affidavit in opposition (Docket No. 12), pointing out that a
habeas corpus petitioner is not entitled to discovery as a matter of course, e.g., Drake v
Portuondo, 321 F.3d 338, 346 (2d Cir. 2003) (citing Bracy v. Gramley, 520 U.S. 899 (1997)),
and arguing that McClelland had not demonstrated the requisite good cause because he had not
“set forth specific allegations that provide reason to believe that the petitioner may, if the facts
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are fully developed, be able to demonstrate that he is . . . entitled to relief.” Defino v. Thomas,
2003 WL 40502, at *4 (S.D.N.Y.2003).
Respondent also explained that no 911 call was placed with regard to the incident
involving McClelland. As recounted above by this Court in its summary of the trial testimony,
Petitioner was stopped and questioned by the police based on his “furtive” behavior. During the
questioning, the homeowner (DuBois) who had arrived home to find his security alarm
sounding, approached the police officer to report the burglary of his home. It was then that he
saw items that had been taken from his home on the trunk of the patrol car. The homeowner
testified that his alarm was not connected to a monitoring service or to the police department. See
Respondent’s Affidavit, ¶¶ 7, 8 (Docket No. 12). Respondent stated that the report setting forth
the radio transmissions between the police officers who apprehended and transported Petitioner
to headquarters and the police dispatcher was turned over to Petitioner’s attorney under New
York’s criminal discovery statute codifying People v. Rosario, 9 N.Y.2d 286 (N.Y. 1961). In
sum, Respondent argued, McClelland not only failed to show good cause for his request for a
tape-recording of a 911 call, he failed to show such a tape existed. Id. (Docket No. 12).
In his reply affidavit (Docket No. 13), Petitioner argued if the 911 call transcript had been
requested by his trial attorney, it would have confirmed his assertion that his arrest without
probable cause commenced at an earlier point in time, and that the discrepancy between the
arresting officer’s testimony asserting the exact time of Petitioner’s arrest, after one of the
owners identified the property found in Petitioner’s possession, would have created a serious
issue of the officer’s credibility causing the state court judge to agree with Petitioner’s
reconstruction of the time-line leading to his arrest. According to Petitioner, this would have
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demonstrated that the discovery of the stolen property and Petitioner’s statement were the fruits
of Petitioner’s unlawful detention and not based on reasonable suspicion or probable cause.
Petitioner’s Reply Affidavit, ¶ 12 (Docket No. 13). Petitioner further argued that this alleged
discrepancy would have resulted in his acquittal because it would also have undermined the
credibility of the arresting officer’s trial testimony directed to Petitioner’s guilt. Id. (Docket No.
13). Petitioner contended that Respondent’s assertion that the 911 transcript does not exist
contradicted Petitioner’s belief that his trial attorney had previously informed Petitioner that the
tape of the 911 call did exist, and that his attorney had received a copy, but that the copy received
by the attorney was “inaudible.” Id., ¶ 11 (Docket No. 11).
Alternatively, Petitioner requested a subpoena for a “CAD Report Transmission” and “the
Dispatcher’s Report Transmission” in order to demonstrate further inconsistencies between the
arresting officer’s testimony at the suppression hearing and trial regarding the specific
investigative steps leading to Petitioner’s arrest on the burglary charge. Id., ¶ 16 (Docket No. 11).
Petitioner did not further identify the requested CAD Report Transmission.
Magistrate Judge Foschio, in a very thorough decision and order (Docket No. 14), found
that McClelland had not demonstrated “good cause” for his request for the alleged 911 taperecording or transcripts. Magistrate Judge Foschio read Petitioner’s motion as setting forth a
belief that the 911 tape or transcripts might establish that the police learned of the reported
burglary after Petitioner was physically detained in a police car near the place of the burglary
without reasonable suspicion or probable cause, and that defense counsel’s failure to pursue this
ground for suppression demonstrates ineffective assistance of counsel at the suppression hearing
conducted in Petitioner’s case which resulted in an adverse ruling to Petitioner. See McCalla v.
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Greiner, 378 F. Supp.2d 262, 271 n. 5 (W.D.N.Y. 2005) (ineffective assistance of counsel claim
based on Fourth Amendment suppression litigation not barred by Stone v. Powell) (citing
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
However, according to Respondent, the underlying 911 tape or tapes do not exist.
Magistrate Judge Foschio explained that nothing in Petitioner’s Reply Affidavit explained
“how defense counsel could have negated the arresting officer’s testimony that Petitioner was
arrested and charged only after one of the victims arrived on foot at the police car where
Petitioner was being held, verbally reported that his home, a few doors away, had been
burglarized, and contemporaneously identified the contents of bags the police had observed
Petitioner had been carrying when he was stopped for questioning as stolen property which the
officers asserted Petitioner had consensually revealed during his encounter with the police.”
Order at 4 (Docket No. 14).
Judge Foschio explained that the trial court, in rejecting Petitioner’s request for
post-conviction relief on the same ground, thoroughly considered defense counsel’s efforts to
establish the same point that Petitioner’s habeas claim hinges upon, i.e., that the court would
have disbelieved the arresting officers’ recounting of the events leading to Petitioner’s arrest, if
defense counsel had been more effective by cross-examining the officers using the 911
transcripts. See Memorandum and Order of Hon. Shirley Troutman, Erie County Court Judge,
dated December 22, 2006, at pp. 2-3, attached as an exhibit to the Petition (Docket No. 1).
Furthermore, Judge Foschio pointed out, Petitioner admitted he was arrested on an
outstanding Florida warrant at least ten minutes before the victim, DuBois, identified the stolen
property that Petitioner was carrying in a bag. Reply Affidavit ¶9 (Docket No. 13). Significantly,
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Petitioner did not dispute the existence of the Florida warrant, which, Judge Foschio noted,
provided an additional basis for Petitioner’s detention until the police were informed of the
burglary and the stolen property was identified. Order at 4 (Docket No. 14).
The Magistrate Judge determined that Petitioner’s request for a copy of the so-called
“CAD Report of Transmissions” between the arresting officers and the communications
department, referenced in Respondent’s opposition affidavit, was not supported by “good cause”
because those records were provided to defense counsel. Judge Foschio noted that Petitioner did
not dispute Respondent’s representation as to the production of these records and concluded that
since the CAD Report of Transmissions had been previously provided to Petitioner, there was no
ground for his request. However, if Petitioner advised the Court that he lacked a copy of the
CAD Report of Transmissions, Judge Foschio requested that Respondent provide Petitioner with
an additional copy, if Respondent reasonably could locate a copy in the Erie County District
Attorney’s files.
This case subsequently was reassigned from Judge Foschio to the undersigned. (Docket
No. 15).
A little less than eight months after Judge Foschio’s order denying the request for a
subpoena duces tecum, McClelland filed a motion to compel discovery, claiming that the CAD
Report of Transmissions with which he was provided in November 2010 by Respondent was
“insufficient.” He accordingly requested the “CAD print out from the original back-up tape.”
(Docket No. 16). The Court issued a scheduling order directing Respondent to respond to the
motion. (Docket No. 17).
Respondent’s attorney filed an affidavit in opposition (Docket No. 18) noting that she had
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reviewed the contents of Petitioner’s file and found no such “CAD print out from the original
back-up tape” contained therein. Respondent’s attorney did find a cassette tape which was
attached to the CAD Report of Transmission. Respondent’s attorney had the cassette tape
converted to a compact disc which was manually filed with the Court on January 3, 2011.
(Docket No. 19).
McClelland submitted two affidavits in response to Respondent’s affidavit. (Docket Nos.
20 & 21). These are discussed further infra in Section III. As also discussed in Section III, infra,
McClelland has not demonstrated good cause for the invocation of discovery procedures in his
second Motion to Compel.
III.
Motion to Compel Discovery
It is well established that “[a] habeas petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S.
899, 904 (1997). Discovery is only permitted where the district court finds “good cause” to allow
it. See Rule 6(a) of the Rules Governing Section 2254 Cases. Such good cause exists “‘where
specific allegations before the court show reason to believe that the petitioner may, if the facts
are fully developed, be able to demonstrate that he is . . . entitled to relief.’” Bracy, 520 U.S. at
908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)).
By McClelland’s own admission, his request for discovery in the second Motion to
Compel is moot. In his first reply affidavit, submitted in response he stated he “must stubbornly
concede” that “‘the tape [defense] counsel showed him’ at the Erie County Holding Center, and
referred to as the 911 tape[,] was more than likely the CAD report from the original backup tape.
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. . .”2 He further admits that it was available to the defense well in advance of the suppression
hearing and trial. Thus, there can be no contention that any information was withheld from the
defense. The motion to compel accordingly is denied as moot.
In the second reply affidavit, McClelland changes tack and requests a “transcribed copy”
of the compact disc submitted by Respondent; as noted above, Respondent converted the cassette
tape attached to the CAD Report into compact disc form and submitted it to the Court. This
compact disc does not contain information that will enable McClelland “to demonstrate that he is
. . . entitled to relief.” Bracy, 520 U.S. at 908-09 (quotation omitted). The contents of the CAD
Report of Transmission pertain only to the Fourth Amendment issues litigated at the suppression
hearing in McClelland’s case. As set forth above in the Factual Background and Procedural
History, and as discussed further below in this Decision and Order, the state courts considered his
Fourth Amendment claims in depth and explicitly determined the propriety of his arrest and the
statements and property obtained as a result of the search and seizures. Because McClelland had
a full and fair opportunity to litigate his Fourth Amendment claims in state court, he is not
entitled to have this habeas court conduct a de novo factual review of them. Because the CAD
Report of Transmission pertains only to McClelland’s Fourth Amendment issues, which cannot
form the basis for habeas relief, McClelland has not demonstrated “good cause” for having
Respondent or the Court incur the cost of transcribing the compact disc. Accordingly,
McClelland’s request in his second reply affidavit for a “transcribed copy” of the compact disc
2
The remainder of the affidavit rehashes McClelland’s arguments as to why his suppression motion
was erroneously decided. At the end of the affidavit, McClelland suggests that because there allegedly is no
indication of “operator assignment” for the “time period of 5:10;23 [sic]” in the “Call-For-Service Inquiry
Response”, this omission “raises the question of whether respondent has suppressed favorable evidence . . . .”
McClelland does not explain the rationale behind this statement.
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submitted in connection with Respondent’s opposition affidavit is denied. Accord, e.g., Crispino
v. Allerd, 378 F. Supp.2d 393, 414 & n. 5(S.D.N.Y. 2005).
IV.
Limitations on Habeas Relief
It is well-established that a federal habeas court “is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); see generally 28 U.S.C. §
2254(a).
When a petitioner “in custody pursuant to the judgment of a State court” seeks habeas
review of a constitutional “claim that was adjudicated on the merits in State court,” a habeas writ
may issue only if the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2). A state court decision is “contrary to” federal law as determined by
the Supreme Court if either (a) “the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law,” or (b) “the state court considers facts that are materially
indistinguishable from a relevant Supreme Court case and arrives at an opposite result.” Williams
v. Taylor, 529 U.S. 362, 405 (2000)). An “unreasonable application” of clearly established
federal law occurs if (a) “‘the state court identifies the correct governing legal rules from the
[Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s
case,’” or (b) the “state court invokes a Supreme Court case and unreasonably extends its legal
principle to a new context where it should not apply, or fails to extend it where it should apply.”
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Williams, 529 U.S. at 407.
Factual findings by a state court are entitled to a presumption of correctness, 28 U.S.C. §
2254(e)(1), which the habeas applicant bears the burden of overcoming by clear and convincing
evidence, id.
V.
Analysis of the Claims Raised in the Petition
A.
Ground One: Unreasonable Search and Seizure
As Respondent argues, the alleged violation of Petitioner’s Fourth Amendment rights is
not cognizable on federal habeas review under the doctrine articulated in Stone v. Powell, 428
U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), in which the United States Supreme Court held
that “where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a state prisoner be granted federal
habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial.” 428 U.S. at 481-82. (emphasis added). In Gates v. Henderson, 568
F.2d 830 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787
(1978)), the Second Circuit articulated the following “litmus test” for determining when a
petitioner has denied an “opportunity” for a “full and fair litigation of his fourth amendment
claims[,]” Gates, 568 F.3d at 839: In light of the Supreme Court’s holding in Powell that the
state is only required provide the “opportunity” to the state prisoner for a full and fair litigation of
the Fourth Amendment claim, review of Fourth Amendment claims presented by habeas
petitioners would be undertaken in only one of two instances– either the State provided no
corrective procedures at all to redress the alleged Fourth Amendment violations, or the defendant
was precluded from using the corrective process because of an “unconscionable breakdown in
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the underlying process”. Accord Graham v. Costello, 299 F.3d 129, 134 (2d Cir.2002) (“[O]nce
it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment
claim (whether or not he or she took advantage of the state's procedure), the court's denial of the
claim is a conclusive determination that the claim will never present a valid basis for federal
habeas relief.... [T]he bar to federal habeas review of Fourth Amendment claims is permanent
and incurable absent a showing that the state failed to provide a full and fair opportunity to
litigate the claim[.]”).
Notably, all that must be shown is that the State has provided an opportunity to litigate
the habeas petitioner’s Fourth Amendment claim; it matters not whether the petitioner actually
“took advantage of the State’s procedure.” Graham, 299 F.3d at 134. McClelland does not, and
cannot contend that New York failed to provide a corrective procedure to redress his alleged
Fourth Amendment claim. This is because he took advantage of the opportunity to challenge the
legality of his arrest by means of New York’s procedure for litigating Fourth Amendment claims,
embodied in New York Criminal Procedure Law § 710.10 et seq., which has been held by federal
courts in New York to be “‘facially adequate.’” Capellan, 975 F.2d at 70 n. 1 (quoting Holmes v.
Scully, 706 F.Supp. 195, 201 (E.D.N.Y.1989) and citing Gates, 568 F.2d at 837 & n. 4; Shaw v.
Scully, 654 F.Supp. 859, 864 (S.D.N.Y.1987)).
Rather, McClelland asserts that the state courts erroneously decided his motion to
suppress, and he essentially is asking this Court to conduct a de novo factual review of his
claims. The relief requested, however, is expressly forbidden by the Stone v. Powell doctrine. As
the Second Circuit has explained many times, a petitioner’s mere dissatisfaction or disagreement
with the outcome of a suppression motion is not sufficient to establish that an “unconscionable
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breakdown” occurred in the existing process in violation of the petitioner’s Fourth Amendment
rights under the Constitution. Capellan, 975 F.2d at 71 (“[T]o the extent that [petitioner] claims
that the Appellate Division erred in its ruling . . . , this would not give us authority to review his
claims since a mere disagreement with the outcome of a state court ruling is not the equivalent of
an unconscionable breakdown in the state’s corrective process.”); Gates v. Henderson, 568 F.2d
at 840 ( “Stone v. Powell . . . holds that we have no authority to review the state record and grant
the writ simply because we disagree with the result reached by the state courts.”).
The Second Circuit has explicitly rejected the possibility of interpreting Stone v. Powell
to require the reviewing court to focus on the correctness of the State court’s judicial mechanism
for evaluating Fourth Amendment claims, rather than on the existence and application of the
corrective procedures themselves. According to the Second Circuit, to subject a habeas
petitioner’s previously litigated Fourth Amendment claims to further federal review would be to
assume, “implicitly at least, that state courts were not responsible forums in which to bring
constitutional claims such as is presented herein.” Capellan, 975 F.2d at 71. The Supreme
Court’s decision in Stone v. Powell does not countenance such an assumption:“[W]e are
unwilling to assume that there now exists a general lack of appropriate sensitivity to
constitutional rights in the trial and appellate courts of the several States.” 428 U.S. at 493-94 n.
35.
Here, as discussed above, McClelland took full advantage of the available State process
by presenting his Fourth Amendment claims at both the suppression hearing and in his briefs to
the state appellate courts. To the extent McClelland contends that he is entitled to further review
of his claims because the trial court’s allegedly erroneous fact-finding, incorrect application of
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the law, and refusal to consider the pertinent issues during the suppression hearing, constituted an
“unconscionable breakdown” in state process, the Court disagrees, given the circumstances
presented here.
Although the Second Circuit has not defined precisely when an unconscionable
breakdown has occurred, an “unconscionable breakdown” contemplates an extreme disruption or
obstruction of the State’s corrective process. As the district court pointedly observed in Cappiello
v. Hoke, “an unconscionable breakdown in the state's process must be one that calls into serious
question whether a conviction is obtained pursuant to those fundamental notions of due process
that are at the heart of a civilized society.” Cappiello v. Hoke, 698 F. Supp. 1042, 1050
(E.D.N.Y.), aff’d, 852 F.2d 59 (2d Cir. 1988) (per curiam) (cited with approval in Capellan, 975
F.2d at 70; see also 975 F.2d at 70 (citing Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y.
1987)).
Clearly, then, a petitioner's mere disagreement with the outcome of the state courts'
rulings “is not the equivalent of an unconscionable breakdown in the state's corrective process.”
Capellan, 975 F.2d at 72; accord, e.g., Watkins v. Perez, No. 05 Civ. 477(GEL), 2007 WL
1344163, at *23 (S.D.N.Y. May 30, 2007) (holding that rejection by state appellate court of
petitioner’s Fourth Amendment claims, without more, is not an “conscionable breakdown” in the
state’s corrective process; noting that a “habeas court cannot grant relief simply because it may
disagree with the state court's resolution of the claim”); Woods v. Kuhlmann, 677 F.Supp. 1302,
1306 (S.D.N.Y. 1988) (“The doctrine of Stone v. Powell, however, forbids de novo review of
state court fact-finding on a Fourth Amendment issue particularly where, as here, the petitioner
can claim only that the issue was wrongly decided.”); Huntley v. Superintendent, No.
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9:00CV191, 2007 WL 319846, at *8 (N.D.N.Y. Jan. 30, 2007); Gonzalez v. Superintendent,
Sullivan Corr. Fac., 761 F. Supp. 973, 977 (E.D.N.Y. 1991) (rejecting habeas petitioner’s claim
that state court denied his request for a probable cause hearing insufficient facts asserted to
warrant such a hearing was “unconscionable breakdown” in the process afforded by the state;
petitioner was provided, as mandated by Stone, with a full and fair opportunity to litigate his
fourth amendment claim in the state courts and “[t]he fact that petitioner was denied his request
for such a hearing does not, in and of itself, affect the legitimacy of the state process”).
The crux of McClelland’s argument is that Officer Ammerman perjured himself at the
grand jury, the suppression hearing, and at trial. When asked by the prosecutor whether, after
arresting McClelland, he “came across anything, any burglar’s tools or anything of that nature,”
Officer Ammerman testified at the grand jury as follows: “Yes. The defendant had a flashlight
and gloves along with the property he had [in the shopping bags]. Officer Wendy Collier, Officer
Ammerman’s partner, filed a misdemeanor information which stated that “the gloves were
recovered in defendant’s left rear pants pocket” and the flashlight was in one of the shopping
bags. On cross-examination at the suppression hearing, Officer Ammerman referred to “the
gloves and flashlight in the bag” being transported by McClelland on the handlebars of his
bicycle. (SH.34). Upon further questioning by the court, Officer Ammerman also referred to
“burglary tools” being found “in the property” contained in the shopping bags. (SH.40). At trial,
Officer Ammerman testified that the shopping bags (which he searched, after being given express
permission to do so by McClelland) contained a flashlight and gloves (in addition to several
bottles of perfume and cologne). (T.106, 108). McClelland perceives a discrepancy between
Officer Collier’s report and Officer Ammerman’s testimony with regard to the location of the
gloves at the time they were seized from him. From this he argues that Officer Ammerman
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perjured himself.
“A witness commits perjury if he gives false testimony concerning a material matter with
the willful intent to provide false testimony, as distinguished from incorrect testimony resulting
from confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).
“Simple inaccuracies or inconsistencies in testimony do not rise to the level of perjury.” United
States v. Sanchez, 969 F.2d 1409, 1414-15 (2d Cir.1992); see also People v. McDaniel, 81
N.Y.2d 10 (N.Y. 1993). It bears emphasizing that even on direct appellate review of a criminal
conviction, new trials based upon newly discovered evidence indicating perjury are “‘granted
only with great caution and in the most extraordinary circumstances.’” United States v. Stewart,
433 F.3d 273, 296 (2d Cir. 2006) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d
Cir. 1992)). McClelland has not come close to demonstrating that Officer Ammerman willfully
provided false testimony on a material matter. Notably, McClelland’s experienced appellate
counsel did not include this “perjury” claim as one of the arguments on appeal. That is because it
is plainly without merit.
In the present case, the Court cannot find evidence of an “unconscionable breakdown” of
the Fourth Amendment process afforded him. Rather, McClelland can claim only that, in his
opinion, the Fourth Amendment issue was incorrectly decided by the state courts. The Second
Circuit clearly has held that a petitioner's mere disagreement with the state courts' rulings on his
Fourth Amendment issues does not suffice to demonstrate that some type of governmental
obstruction amounting to an “unconscionable breakdown” in the state’s corrective procedures
prevented him from fully and fairly litigating his Fourth Amendment claims. Capellan, 975 F.2d
at 72. Because McClelland can show nothing more than that he disputes the correctness of the
state court's rulings, the doctrine of Stone v. Powell forbids de novo review of any state court
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fact-finding on such issues.
For all of the foregoing reasons, federal habeas review of McClelland's Fourth
Amendment claim regarding the stop of his vehicle and subsequent arrest, and search and
seizure, is unavailable under the doctrine of Stone v. Powell, supra. Accordingly, Ground One
must be dismissed.
B.
Ground Two: Verdict Against the Weight of the Evidence
Petitioner argues, as he did on direct appeal, that the verdict convicting him of second
degree burglary was against the weight of the evidence. Specifically, Petitioner contends that the
jury failed to take into account that (1) there was no evidence that he entered DuBois’s home, and
(2) Petitioner was not found in possession of all the property that was stolen from the home.
Petitioner reasons that the only logical conclusion is that he found the property as opposed to
having stolen it.
In his Memorandum of Law in Opposition to the Petition (“Resp’t Mem.”), Respondent
argues that Petitioner has not overcome the presumption of burglary created by his recent,
exclusive and unexplained possession of stolen property and, accordingly, the inference of guilt
was reasonably supported. See People v. Baskerville, 60 N.Y.2d 374 (N.Y. 1983)).
On direct appeal, the Appellate Division ruled that the verdict finding McClelland guilty
of second degree burglary was not against the weight of the evidence. People v. McClelland, 35
A.D.3d at 1265 (citing People v. Bleakley, 69 N.Y.2d 490, 495 (N.Y. 1987); People v. Vasquez,
11 A.D.3d 643, 644 (App. Div. 2d Dept. 2004) (“In the absence of any evidence tending to
establish that another person may have committed the burglary and delivered the fruits of the
burglary to the defendant, a court is not required to instruct the jury that it could infer that the
defendant was a mere possessor of stolen property. At trial, the defendant failed to produce any
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evidence that a different individual committed the burglary and delivered the stolen property to
him.”) (internal citations omitted)).
As the New York Court of Appeals explained in People v. Bleakley,
Although the two standards of intermediate appellate review–legal sufficiency and
weight of evidence–are related, each requires a discrete analysis. For a court to
conclude, as the Appellate Division did in this case, that a jury verdict is
supported by sufficient evidence, the court must determine whether there is any
valid line of reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the evidence at trial
and as a matter of law satisfy the proof and burden requirements for every element
of the crime charged. If that is satisfied, then the verdict will be upheld by the
intermediate appellate court on that review basis.
To determine whether a verdict is supported by the weight of the evidence,
however, the appellate court’s dispositive analysis is not limited to that legal test.
Even if all the elements and necessary findings are supported by some credible
evidence, the court must examine the evidence further. If based on all the credible
evidence a different finding would not have been unreasonable, then the appellate
court must, like the trier of fact below, weigh the relative probative force of
conflicting testimony and the relative strength of conflicting inferences that may
be drawn from the testimony. If it appears that the trier of fact has failed to give
the evidence the weight it should be accorded, then the appellate court may set
aside the verdict.
Bleakley, 69 N.Y.2d at 494-95 (internal citations and quotations omitted).
Respondent argues that McClelland’s weight-of-the-evidence claim is not cognizable on
federal habeas review. See Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir 1985) (“A federal
habeas court has no power to grant habeas corpus relief because it finds that the state conviction
is against the ‘weight’ of the evidence . . . .”), cert. denied, 476 U.S. 1123 (1986)). Petitioner, in
his Traverse, asserts that his weight-of-the-evidence claims is cognizable on federal habeas
review. Petitioner argues that under New York law, a weight-of-the-evidence analysis
incorporates, as a first step, an inquiry into whether the evidence was legally sufficient–that is,
whether a rational trier of fact could have found all of the essential elements of the crime beyond
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a reasonable doubt. Petitioner states that under the “second prong”, the reviewing court will
determine whether the verdict is supported by the “weight of the evidence.” Petitioner’s Traverse
(“Trav.”) at 17-18 (citations omitted). Petitioner characterizes these two standards as having
“modest differences” and argues that habeas review of his weight-of-the-evidence claim is not
only permitted but required.
Petitioner’s argument, although creative, cannot carry the day. The “weight of the
evidence” claim asserted here derives from New York Criminal Procedure Law (“C.P.L.”) §
470.15(5), which permits an appellate court in New York to reverse or modify a conviction
where it determines “that a verdict of conviction resulting in a judgment was, in whole or in part,
against the weight of the evidence.” N.Y. CRIM . PROC. LAW § 470.15(5). Thus, a “weight of the
evidence” argument is a pure state law claim grounded in the criminal procedure statute, whereas
a legal sufficiency claim is based on federal due process principles. People v. Bleakley, 69
N.Y.2d at 495. Since a “weight of the evidence claim” is purely a matter of state law, it is not
cognizable on habeas review. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review
only where the petitioner has alleged that he is in state custody in violation of “the Constitution
or a federal law or treaty”); Estelle v. McGuire, 502 U.S. at 68 (“In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.”).
Federal courts routinely dismiss claims attacking a verdict as against the weight of the
evidence on the basis that they are not federal constitutional issues cognizable in a habeas
proceeding. Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) (holding that “a writ of habeas corpus
cannot be used to review the weight of evidence . . .”), aff’d, 263 U.S. 255 (1923); Garrett v.
Perlman, 438 F. Supp.2d 467, 470 (S.D.N.Y. 2006) (same); Douglas v. Portuondo, 232 F.
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Supp.2d 106, 116 (S.D.N.Y. 2002) (same). In keeping with this well-settled precedent,
McClelland’s weight-of-the-evidence claim should be dismissed as not cognizable in this habeas
proceeding.
Even if McClelland’s claim were considered as a legal insufficiency claim, it is still
without merit. His primary contention is that Officer Ammerman’s testimony was inherently
perjurious. However, a habeas petitioner’s contention that a witness’ testimony was unworthy of
belief is not reviewable in habeas proceedings since credibility determinations are the province of
the jury. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim
because “assessments of the weight of the evidence or the credibility of witnesses are for the jury
and not grounds for reversal on appeal; stating that it must defer to the jury’s assessments of both
of these issues) (citing United States v. Rosa, 11 F.3d 315, 337 (2d Cir.1993), cert. denied, 114
S. Ct. 1565 (1994); United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872
(1990)). McClelland here is merely repeating arguments attacking the witnesses’ credibility his
trial counsel already made to the jury as trier-of-fact, who was in the best position to observe the
witnesses’ demeanor and assess their veracity. It is beyond dispute that a reviewing court must
defer to the trier-of-fact’s assessments of witness credibility. E.g., United States v. Vasquez, 267
F.3d 79 (2d Cir. 2001) ( “The jury chose to believe the witnesses’ testimony despite any
inconsistencies. We will defer to the jury’s assessment of credibility.” ) (citing United States v.
Payton, 159 F.3d 49, 56 (2d Cir.1998) (“Where there is conflicting testimony at trial, we defer to
the jury’s resolution of the witnesses’ credibility. . . .”).
As Respondent argues, where the prosecution proves that a larceny was committed and
that the defendant was in conscious, recent exclusive possession of the stolen goods, the jury
generally is warranted in drawing the inference that the defendant was the thief. Resp’t Mem. at
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(citing People v. Galbo, 218 N.Y. 283, 290-291 (N.Y. 1916)). The inference of guilt arising from
possession of purloined goods is sufficient to constitute prima facie proof of the identity of the
possessor of the stolen property as the perpetrator of the crime. Id. Respondent explains that
Petitioner’s argument ignores (1) his admission in front of Officer Ammerman and Carl DuBois
that the property belonged to DuBois (the burglary victim) and (2) his statement to the report
technician at the police booking department that he would only be charged with trespass because
he was not caught inside the house. Petitioner’s apprehension two blocks away from the victim’s
house in possession of items missing from the burgled dwelling along with Petitioner’s
inculpatory statements, are inconsistent with his suggestion that he merely possessed the stolen
property. Under New York law, in the absence of evidence that someone else may have
committed the burglary, the inference of Petitioner’s guilt was reasonably supported. People v.
Slater, 115 A.D.2d 672, 496 N.Y.S.2d 506 (App. Div. 2d Dept 1985) (“Since there was no
evidence tending to indicate that there was any other person who may have committed the
burglary and delivered the fruits to defendant, the court did not err in refusing to charge the jury
that they could also infer that defendant was merely a knowing receiver of the stolen property.
This inference is merely permissive. However, the inference alone may be sufficient to establish
proof of defendant's guilt of the burglary beyond a reasonable doubt unless defendant can show
that under the facts of his case the jury could not rationally draw that inference. Defendant has
not met this burden.”) (internal citations omitted), appeal denied, 67 N.Y.2d 657 (N.Y. 1986)
(table).
Drawing all possible inferences that may be drawn from the evidence in the prosecution’s
favor; bearing in mind that guilt may be established entirely by circumstantial evidence and that
evidence must not be reviewed piecemeal but, rather, as a whole; and giving due deference to the
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jury’s assessments of the credibility of witnesses (including Officer Ammerman), a rational trier
of fact certainly could have found the essential elements of second degree burglary beyond a
reasonable doubt.
C.
Ground Three: Harsh and Excessive Sentence
On direct appeal, Petitioner argued that his sentence of twenty-five years to life as a
persistent violent felony offender under New York Penal Law § 70.083 was harsh and excessive.
Petitioner urged the Appellate Division to exercise its statutory authority to discretionarily reduce
the sentence to the statutory minimum–sixteen years. The Appellate Division agreed that the
sentence was unduly harsh and modified the judgment by reducing the term to 20 years to life.
People v. White, 35 A.D.3d at 1265.
It is well-settled law that a habeas petitioner’s challenge to the judge’s exercise of
3
Penal Law § 70.08 applies to defendants who stand convicted of a violent felony (as defined in
N.Y. Penal Law § 70.02) and have previously been convicted of two or more predicate violent felonies (as defined in
N.Y. Penal Law § 70.04(1)(b)). It requires the judge to sentence a defendant as a persistent violent felony offender
solely upon the court’s finding that the defendant has the required number of qualifying predicate convictions. Under
Penal Law § 70.08, “the court must impose” an enhanced penalty once it finds that the predicate convictions
occurred, id. at § 70.08(2) (emphasis added). Thus, practitioners of criminal law in New York often refer to Section
70.08 as the “mandatory” recidivist statute. Defendants sentenced under Penal Law § 70.08 receive an indeterminate
sentence of imprisonment, the maximum of which must be life. Minimum terms are prescribed by the statute and
vary depending on the grade of the offense of conviction.
Penal Law § 70.08 has escaped the reach of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000),
and its progeny based upon the Supreme Court’s exemption for predicate felony convictions from the Sixth
Amendment jury-trial requirement. Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”); accord Almendarez-Torres. But see Butler v. Curry, 528 F.3d at 644
(examining the issue of the “outer bounds of the ‘prior conviction’ exception after Apprendi” and explaining that
although the Supreme Court has affirmed Almendarez-Torres’ exception for prior convictions, it “also recognized
that a district court’s findings of fact about the basis for a prior guilty plea or conviction at some point ‘raise[ ] the
concern underlying . . . Apprendi,’ that is[,] that the Constitution ‘guarantee[s] a jury’s finding of any disputed fact
essential to increase the ceiling of a potential sentence’ ”) (quoting Shepard v. United States, 544 U.S. 13, 25, 125
S.Ct. 1254, 161 L.Ed.2d 205 (2005)); Shepard, 544 U.S. at 27-28 (Thomas, J., concurring) (“[A] majority of the
[Supreme] Court now recognizes that Almendarez-Torres was wrongly decided . . . . “[I]n an appropriate case, this
Court should consider Almendarez-Torres’ continuing viability . . . .”). Habeas courts in this Circuit have held that
the persistent violent felony offender statute “falls squarely within Apprendi’s exception for sentence enhancements
based solely on prior convictions.” Antinuche v. Zon, No. 1:05-cv-01246-ENV, 2010 W L 2035795, at *11
(E.D.N.Y. May 20, 2010) (citations omitted).
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discretion in setting the length of his or her prison term does not present a cognizable
constitutional issue if the sentence falls within the statutory range. See Townsend v. Burke, 334
U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (“The [petitioner’s] sentence being within
the limits set by the statute, its severity would not be grounds for relief here even on direct
review of the conviction, much less on review of the state court’s denial of habeas corpus.”);
White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992) (“No federal constitutional issue is presented
where . . . the sentence is within the range prescribed by state law.”) (citing Underwood v. Kelly,
692 F. Supp. 146 (E.D.N.Y.1988), aff’d mem., 875 F.2d 857 (2d Cir.1989)); accord, e.g., Ross v.
Gavin, No. 95-2448,101 F.3d 687, 1996 WL 346669, at *1 (2d Cir. June 25, 1996) (unpublished
opinion). Because Petitioner’s sentence falls within the permissible statutory range, his challenge
does not present a constitutional question cognizable in a federal habeas action. Therefore, it is
dismissed.
To the extent that McClelland presents a claim that his sentence violated the Eighth
Amendment’s prohibition against cruel and unusual punishment because it was disproportionate
to the nature of the crime, I agree with Respondent that it is unexhausted because he did not
present his challenge to the sentence in constitutional terms on appeal. See 28 U.S.C. §§
2254(b)(1)(A); 2254(c) (“An applicant shall not be deemed to have exhausted the remedies . . . if
he has the right under the law of the State to raise, by any available procedure, the question
presented.”); Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002) (“To exhaust a federal claim, a
petitioner must ‘fairly present[ ]’ to the state courts the ‘substance’ of that claim.”) (quoting
Anderson v. Harless, 459 U.S. 4, 6 (1982); other quotation and some internal quotation marks
omitted).
Petitioner’s appellate brief presented his sentencing claim in terms of state law, invoking
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the power of the Appellate Division to reduce his sentence in the interest of justice under C.P.L.
§ 470.15(b)(b). Respondent correctly argues that this is insufficient to alert the state court that the
claim is of a federal constitutional dimension. E.g., Polanco v. Ercole, No. 06 Civ. 1721, 2007
WL 2192054, at *7 (S.D.N.Y. July 31, 2007) (a challenge that a sentence violated the United
States Constitution was unexhausted where no such claim was fairly presented to the state's
highest court); King v. Cunningham, 442 F. Supp.2d 171, 181 (S.D.N.Y. 2006) (“The Court finds
King's Eighth Amendment “excessive sentence” claim unexhausted because the constitutional
nature of the claim was not “fairly presented” to the state courts on direct appeal. King's
Appellate Division brief presented his excessive sentence claim in terms of state law, invoking
the power of a state appellate court to reduce sentences in the interest of justice under C.P.L. §
470.15(6)(b). This Court and other courts in this district have found that a prisoner’s reliance on
a state procedural law granting courts discretionary authority to reduce sentences does not “fairly
present” his/her constitutional claim in state court.”) (citations omitted).
McClelland apparently could raise an Eighth Amendment claim in a C.P.L. § 440.20
motion in Erie County Court because there is no time limit within which to file such a motion,
and more than one motion to set aside a sentence is permissible so long as the ground or issue
raised was not previously determined on the merits in a direct appeal. C.P.L. § 440.20(1)(2).
Thus, I cannot say that an Eighth Amendment claim is procedurally defaulted. See Mendoza v.
Miller, No. 9:04-cv-1270 (LEK), 2008 WL 3211277, at *7 (N.D.N.Y. Aug. 6, 2008) (Kahn, D.J.)
(citing Saracina v. Artus, No. 04-CV-521S, 2007 WL 2859722, at *7 (W.D.N.Y. Sept. 26, 2007)
(Skretny, D.J. (under C.P.L. § 440.20(3), a state court has discretion to consider a motion in the
interest of justice even where the same issue was determined on the merits in another proceeding
other than a direct appeal); Reyes v. Phillips, 02 Civ. 7319, 2005 WL 2173812, at *5 (S.D.N.Y.
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Sept. 6, 2005) (because C.P.L. § 440.10(3) and § 440.20(3) were discretionary, the court was not
prepared to hold that petitioner could not return to file a second motion under either section).
However, McClelland cannot demonstrate “good cause” for failing to exhaust an Eighth
Amendment claim earlier in state court. See Rhines v. Weber, 544 U.S. 269, 275, 277-78 (2005)
In any event, I note that district courts now have the discretion to dismiss a habeas
petition on the merits notwithstanding the petitioner’s failure to exhaust his claims in state court.
See 28 U.S.C. § 2254(b)(2); see also Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002).
Under any standard of review, I conclude that McClelland does not have an Eighth Amendment
that warrants habeas relief.
The Eighth Amendment prohibits “extreme sentences that are grossly disproportionate to
the crime.” United States v. Snype, 441 F.3d 119, 152 (2d Cir.) (citing cases) (internal quotation
marks omitted), cert. denied, 549 U.S. 923, reh’g denied, 549 U.S. 1090 (2006); see also, e.g.,
Solem v. Helm, 463 U.S. 277, 288 (1983). I note at the outset that because a habeas court must
grant considerable deference to legislatively mandated terms of imprisonment, it is “exceedingly
rare” for a petitioner to successfully challenge his sentence. Ewing v. California, 538 U.S. 11, 22
(2003) (quoting Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam)); accord Solem v. Helm,
463 U.S. at 290 (“Reviewing courts, of course, should grant substantial deference to the broad
authority that legislatures necessarily possess in determining the types and limits of punishments
for crimes, as well as to the discretion that trial courts possess in sentencing convicted
criminals.”). Violations of the Eighth Amendment’s proportionality clause are found only
‘extreme’ case.” Lockyer v. Andrade, 538 U.S. at 73 (quoting Harmelin v. Michigan, 501 U.S. at
1001). Indeed, the standard is essentially insurmountable. See, e.g., Lockyer v. Andrade, 538
U.S. at 77 (holding that petitioner’s sentence under California “three strikes” recidivist statute of
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two consecutive terms of 25 years to life for stealing approximately $150 in videotapes was not
grossly disproportionate in violation of the Eighth Amendment); Hutto v. Davis, 454 U.S. 370
(where defendant was sentenced to two consecutive terms of 20 years in prison for possession
with intent to distribute nine ounces of marijuana and distribution of marijuana, Eighth
Amendment not violated). The Court recognizes that McClelland stole what were essentially
worthless items and that he was not found in possession of a weapon and, indeed, no one was at
home or harmed during the break-in. However, given the Supreme Court’s precedent on this
issue, e.g., Lockyer, 538 U.S. at 77; Hutto, 454 U.S. 370,4 McClelland’s recidivist sentence of 20
years to life for second degree burglary does not approach or exceed the outer limits of what the
Supreme Court has determined to be permissible punishments under the Eighth Amendment.
VI.
Conclusion
For the reasons stated above, Carl McClelland’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because McClelland has
failed to make a substantial showing of a denial of a constitutional right, 28 U.S.C. § 2253(c)(2),
no certificate of appealability shall issue.
IT IS SO ORDERED.
/s/ Victor E. Bianchini
_______________________________________
VICTOR E. BIANCHINI
United States Magistrate Judge
DATED:
4
April 21, 2011
Buffalo, New York
I note that Lockyer and Hutto both come from the Supreme Court’s pre-AEDPA jurisprudence.
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