Poole v. Sheahan
Filing
18
-CLERK TO FOLLOW UP- DECISION AND ORDER denying petitioner's request for a writ of habeas corpus and dismissing the petition. Copy of Decision and Order sent by first class mail to petitioner. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/8/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
C.W. POOLE,
Petitioner,
No. 1:13-CV-00095 (MAT)
DECISION AND ORDER
-vsM. SHEAHAN,
Respondent.
I.
Introduction
C.W. Poole (“petitioner”), proceeding pro se, petitions this
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner
is
incarcerated
pursuant
to
a
judgment
entered
August 14, 2007, in New York State Supreme Court, Monroe County,
following a jury verdict convicting him of criminal possession of
a weapon (“CPW”) in the second degree (N.Y. Penal Law § 265.03(3)),
CPW in the third degree (N.Y. Penal Law § 265.02(1)), and four
counts of assault in the second degree (N.Y. Penal Law § 120.05(2),
(3)).
II.
Factual Background and Procedural History
Petitioner was tried at a jury trial from July 9 through 12,
2007. Evidence at trial established that in the afternoon of
December 4, 2006, uniformed Rochester Police Officers Michael
Semaru and Danwattie Sanasie responded separately to a radio call
reporting a man menacing another person with a shotgun on Weeger
Street in the City of Rochester. Upon arriving at the scene, both
officers recognized petitioner as matching the description of the
suspect described in the radio call. Noticing that petitioner’s
clothing was bulky and “[d]ue to the nature of the call with the
potential of a shotgun involved,” Semaru drew his service pistol
and ordered petitioner, along with a man accompanying him, to the
ground. Doc. 13-3 at 271. The other man complied, but petitioner
did not. Senasie, also at the scene, had drawn her service pistol
and, along with Semaru, triangulated petitioner.
Petitioner refused to submit, and Semaru, after securing his
service pistol back in its holster, attempted to take petitioner
down
by
force
while
Senasie
continued
to
point
her
gun
at
petitioner. Petitioner resisted, punched Semaru in the face, and a
fight ensued between the two in which further blows were exchanged.
Eventually, petitioner dove for Semaru’s service pistol, and Semaru
(who had been inadvertently sprayed with pepper spray by Senasie)
yelled, “[h]e’s got a gun.” Doc. 13-3 at 290. Semaru and petitioner
fought over the gun, with petitioner pointing the gun at Semaru’s
head and firing a shot after Semaru had pushed the gun toward open
air. The conflict continued, and ultimately petitioner hit both
Semaru and Senasie over the face and head with the gun. As
petitioner continued to struggle with Semaru, Senasie fired one
shot,
from
her
own
service
weapon,
at
petitioner’s
abdomen.
Eventually, Senasie was able to gain control of the gun by sitting
on petitioner’s arm and kicking the gun away.
2
Semaru and Senasie both suffered injuries as a result of the
incident.
Semaru
sustained
a
severe
concussion,
lacerations,
swelling, and bruising to the face, and continued to experience
painful headaches and blurred vision for almost a month following
the incident. Senasie suffered a swollen face and mouth, and she
was unable to chew on the right side of her mouth for a month. As
of the trial date, she had not returned to work due to trauma
resulting from the incident.
A jury convicted petitioner as outlined above. The trial court
sentenced petitioner, as a second felony offender, to an aggregate
prison term of 29 years, with five years post-release supervision
(“PSR”), and fines totaling $2,000.00.
Petitioner filed a counseled direct appeal to the New York
Supreme Court, Appellate Division, Fourth Department, in which he
argued that (1) the trial court erred in denying petitioner’s
request to charge justification; (2) the trial court erred in
sentencing petitioner to consecutive terms for offenses committed
through a single act; and (3) the sentence imposed was unduly harsh
and severe. On February 10, 2011, the Fourth Department modified
the judgment, holding that the sentence imposed for the CPW in the
second degree count must run concurrently with the sentences
imposed
for
assault
in
the
second
degree,
“inasmuch
as
the
possession of the weapon by [petitioner] and his use of the weapon
as a dangerous instrument against each officer arose out of the
3
same criminal act.” People v. Poole, 81 A.D.3d 1314, 1315 (4th Dep’t
2011). The sentence was thus reduced to an aggregate 15-year term.
As modified, the Fourth Department held that the sentence was not
unduly harsh nor severe and affirmed the judgment. Id. The Court of
Appeals denied leave to appeal. See People v. Poole, 16 N.Y.3d 898
(2011).
On February 29, 2012, petitioner filed a motion to vacate the
judgment, pursuant to New York Criminal Procedure Law § 440.10.
Petitioner argued that (1) he was deprived of his right to be
present at trial on July 12, 2007; (2) the trial court erred by
(a) denigrating the defense and referring to the prosecutor as “my
district attorney,” Doc. 13-1 at 118; (b) not asking prospective
jurors whether they were personally acquainted with petitioner or
any of the attorneys; and (c) neglecting to “admonish” the jury
before
recesses,
id.
at
119;
(3)
the
prosecutor
committed
misconduct during questioning of witnesses and summation; (4) trial
counsel was ineffective for (a) failing to object to petitioner’s
absence from trial on July 12, 2007; (b) failing to object to a
police officer’s testimony that he knew petitioner; (c) failing to
object
to
the
reading
of
the
first-degree
murder
charge;
(d) failing to object to an allegedly prejudicial comment made by
the prosecutor at sentencing; and (e) referring to prospective
jurors as “slugs” and failing to request a “voluntariness charge,”
id. at 126-27; and (5) the sentence, including fines, was harsh and
4
excessive. The trial court denied petitioner’s motion on May 10,
2012, finding that his claims were record-based and therefore
should have been brought on direct appeal, and otherwise finding
the
claims
meritless.
See
doc.
13-1
at
167-70
(citing
CPL
§§ 440.10(2)(b) and (2)(c)). The Fourth Department denied leave to
appeal and denied reconsideration, and the Court of Appeals denied
leave to appeal.
III. The Federal Habeas Proceeding
This timely habeas petition followed, in which petitioner
contends that (1) he was deprived of his right to be present in
court on July 12, 2007; (2) the trial court erred in omitting a
justification instruction from its jury charge; (3) petitioner’s
trial counsel was ineffective for failure to object to (a) the
alleged
violation
(b)
prosecutorial
(d)
excessive
of
petitioner’s
misconduct;
fines
and
(c)
bail;
(4)
right
judicial
the
to
be
present;
misconduct;
prosecutor
and
committed
misconduct on summation and in examining witnesses; (5) the trial
court committed misconduct by (a) denigrating the defense; omitting
questions from voir dire; and (c) failing to admonish the jury
during recesses; and (6) the trial court imposed excessive bail and
fines.
IV.
Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
5
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Superior Court for Judicial
Dist.
of
Danbury,
316
F.3d
103,
106
(2d
Cir.
2003)
(citing
28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of
habeas corpus under 28 U.S.C. § 2254 only if the state court’s
adjudication of the petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
Federal
law,
United
as
States,”
determined
28
U.S.C.
by
§
the
Supreme
2254(d)(1),
Court
or
of
involved
the
an
“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
V. Grounds Asserted in the Petition
Each of the grounds raised in the petition, with the exception
of ground two which alleges that the trial court erred in omitting
a justification instruction from its jury charge, was raised in
petitioner’s CPL § 440.10 motion discussed above. Those grounds are
barred by an adequate and independent state law ground, because the
trial court explicitly decided that they were record-based claims
which could have been brought on direct appeal. A denial based on
CPL
§
440.10(2)(c)
constitutes
a
denial
on
an
adequate
and
independent state ground. See Sweet v. Bennett, 353 F.3d 135,
139-40 (2d Cir. 2003) (holding that CPL § 440.10(2)(c) constitutes
adequate
and
independent
state
6
law
ground
where
basis
of
ineffective
assistance
claim
is
apparent
from
trial
record).
Accordingly, these claims are dismissed.
The only remaining ground is petitioner’s second ground, which
alleges that the trial court erred in not giving a jury instruction
on justification. This ground was raised on direct appeal, and the
Fourth Department found it to be meritless. See Poole, 81 A.D.3d at
1314 (citing People v Stevenson, 31 N.Y.2d 108, 112 (1972); People
v Rison, 130 A.D.2d 596 (1987), lv. denied, 70 N.Y.2d 654 (1987)).
As respondent points out, this issue is not cognizable on habeas
review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)
(holding
that
“the
fact
that
the
instruction
was
allegedly
incorrect under state law is not a basis for habeas relief”);
DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004) (noting
that federal court is “not empowered to second-guess” Appellate
Division’s
ruling
that
“as
a
whole,
the
[jury
instructions]
properly set forth the law of New York”).
In
any
event,
the
claim
is
meritless.
Habeas
review
is
warranted only where a petitioner shows that (1) he was entitled to
a justification charge under New York law; (2) the failure to give
such charge resulted in a denial of due process; and (3) the
relevant reviewing
court’s
contrary
conclusion
constituted
an
unreasonable application of clearly established federal law, as
determined by the Supreme Court. Jackson v. Edwards, 404 F.3d 612,
621 (2d Cir. 2005). Petitioner has made no such showing, and the
7
Fourth Department’s finding that this issue is meritless was not an
unreasonable application of Supreme Court precedent. See, e.g.,
Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (“[D]ue
process does not require the giving of a jury instruction when such
charge is not supported by the evidence.”) (citing Hooper v. Evans,
456 U.S. 605, 611 (1982)).
IV. Conclusion
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied, and the petition (Doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. The Clerk
of the Court is requested to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
December 8, 2015
Rochester, New York.
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