Coble v. Unger
DECISION AND ORDER denying Duane Cobles request for a writ of habeas corpus; and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/28/17. (Copy of Decision and Order sent by first class mail to Mr. Coble.) (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsDAVID M. UNGER,
Proceeding pro se, Duane Coble (“Coble” or “Petitioner”) seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is
currently in Respondent’s custody pursuant to a judgment entered
against him in County Court, Erie County (Amico, J.) of New York
State, following a bench trial, on one count Robbery in the Second
Degree (P.L. § 160.10(2)(b)).
Factual Background and Procedural History
Ronald McCoy (“McCoy”), and Rodney Harris (“Harris”) were charged
with Robbery in the First Degree (P.L. §§ 160.15(2), 20.00) and
Burglary in the First Degree (P.L. §§ 140.30(1), 20.00). The
indictment also charged Petitioner and McCoy (but not Harris) with
§§ 265.03(3), 20.00). The charges stemmed from an alleged home
invasion on May 13, 2009, at the apartment of Frankie and Soloana
Knighton located at 73 St. Mary’s Road in the City of Buffalo.
Petitioner and his co-defendants were convicted after a threeday bench trial before Judge Amico in Erie County Court. During the
prosecutor’s direct case, one of the victims, Frankie Knighton
(“Mr. Knighton”), testified that as he was putting out the trash
prior to leaving to attend a car auction in Syracuse, he observed
three masked men walking up his driveway. McCoy had a bandana
covering his face; Coble and Harris had stockings over their faces.
(T.37-39, 41). Mr. Knighton testified that McCoy pointed a gun at
his stomach, while Coble pointed a gun at his head. (T.40). They
said, “[G]ive it up, give up everything, we know you got it.”
(T.35-42). They then forced him back inside the building.
Once inside the house, McCoy emptied Mr. Knighton’s pockets of
cash after demanding to know what he “had on him.” Mr. Knighton
informed them where all of the cash he had in the house was
located, including the $1,000 he intended to bring to the car
auction. According to Mr. Knighton, Coble went into the bedroom
where his wife, Soloana Knighton (“Mrs. Knighton”), and their
infant daughter, Samia, were lying in bed (T.43-44), while McCoy
and the third assailant, Rodney Harris (“Harris”), stayed with him.
They took out a sandwich bag and told Mr. Knighton, “[W]e going to
fill this up.” (T.45).
Mr. Knighton insisted that there was no
more money in the house. (T.92). Harris handed the money to McCoy,
who placed it into a plastic bag. McCoy ordered Mr. Knighton to the
floor at gunpoint while Harris attempted to tie him up with duct
tape. Mr. Knighton testified that Harris spent “15 to 20 minutes”
in a “halfhearted” attempt to restrain him with duct tape, and
succeeded only in getting duct tape on one of Mr. Knighton’s wrists
and around his forehead. (T.74, 97-98).
Mrs. Knighton testified that it was McCoy who was the first
perpetrator to enter the room she was in with Samia. She testified
that McCoy was wearing gloves, and pointed his handgun at her and
demanded to know where the money was. At some point, Mrs. Knighton
testified, Petitioner joined McCoy in the room with her and her
daughter, and McCoy went back and forth between the two bedrooms.
Mrs. Knighton testified that toward the end of the encounter, all
three of the defendants “kind of rush[ed] up to the front” of the
apartment and then “kind of ran off to the back,” each into a
different room. (T.128). Petitioner came into the room she was in,
and tried to escape through the window but the bars blocked his
exit. (T.128-29). Petitioner “kind of paused, looked at [her]” and
then “started stripping off his layers of clothing. He took his
mask off and he took his gloves off and he took his coat off and
then he dropped the weapon by [her] daughter’s bassinet.” (T.128).
This weapon, which had not been displayed previously, was a knife.
(T.150). According to Mrs. Knighton, once they heard the police
announce their presence, Petitioner raised his hands and repeatedly
called out, “I’m back here,” as if he were one of the victims.
(T.149). Mrs. Knighton did not testify that she or her husband had
been restrained with duct tape.
The first Buffalo Police Department (“BPD”) officer on the
scene, Steven Stribing (“Officer Stribing”), said the house was
very quiet even after they “holler[ed]” it was the police. (T.178).
Eventually, they testified, Mr. Knighton was the first to approach
defendants] broke into his house and held him at gunpoint and held
his family at gunpoint.” (T.157, 169, 208-09). Officer Stribing and
Officer Gerald Sullivan testified that Mr. Knighton’s hands or
wrists bound, in front of his body, with duct tape. (Id.). Shortly
thereafter, Officer Stribing heard Mrs. Knighton “screaming . . .
that they had weapons.” (T.190-91). McCoy was the next person to
approach the officers. (T.158, 169, 184). He was frisked and taken
Mrs. Knighton “hollering that [the defendants] had guns on her and
that their baby was in the room;” she was saying, “they are trying
to get out the window. They are looking to get out the window and
the windows are barred.
We just had bars put on the windows.”
(T.159). The officer observed that Mrs. Knighton “had duct tape on
her wrist with her baby in her arms.” (T.163). Officer Stribing
testified that he noticed one of the suspects opening the window
curtains and looking outside.
Petitioner was the third person in the apartment to approach
the officers, which he did “maybe a minute or two” after McCoy.
(T.159-60, 204). The police ordered him to the ground and he was
brought towards the kitchen area. There was then a struggle between
Mr. Knighton and Petitioner, and Petitioner ran from the house.
(T.160, 180). Officers caught him after a brief foot chase, and
brought him back to the Knightons’ apartment. (T.216-18).
Officer Patrick Baggott then went into the bedroom where Mrs.
Knighton and Samia were, and found Harris. (T.185). Harris was
arrested and patted down; Officer Baggott found a knife in his back
pocket. (T.197). A search of the apartment yielded two handguns, a
loaded .44-caliber revolver and an unloaded .38-caliber revolver,
which were in a basket on the top shelf of a bedroom closet. In the
baby’s bedroom, he recovered a mask, a pair of gloves, and a knife
that was lying next to the crib. Detective James Maroney recovered
(T.154-160, 184-187, 249).
The seized handguns were analyzed by a forensic serologist.
The DNA sample obtained from the .38-caliber (unloaded) handgun was
Mr. Knighton; Harris and Petitioner were excluded as contributors.
The .44-caliber (loaded) handgun contained only a trace amount of
DNA, which excluded Mr. Knighton and all three co-defendants as
possible contributors. (T.349, 352, 358, 365-66). Mr. Knighton’s
DNA was found on both items of duct-tape, while each defendant was
ruled out as a contributor of DNA to the duct tape and the knife.
(T.358, 364-66). The prosecution’s DNA expert, when asked “if
someone were wearing gloves would that be consistent with a lower
number,” responded, “I can’t tell that.” (T.353).
McCoy was the only defendant who testified. He stated
Mr. McKnight owed him $3,600 for marijuana which Mr. McKnight had
purchased six weeks earlier.1 According to McCoy, he went to
Mr. McKnights’s house with Petitioner and Harris in order to
collect the money. McCoy acknowledged that he was carrying an
unloaded handgun, but denied that he ever used it. He further
claimed that Mr. McKnight voluntarily turned over the $1,000 to
After a two-day adjournment, Judge Amico convicted Coble of
second-degree robbery (P.L. § 160.10(2)(b)) as a lesser included
offense. Judge Amico did not explicitly render a verdict on the
burglary charge as to Coble, although he did say he found Harris
and McCoy guilty of second-degree burglary. At sentencing, Judge
Amico sentenced Coble as if he had been convicted of second-degree
burglary (P.L. § 140.25(1)(d)) as a lesser included offense,
imposing concurrent determinate terms of 7 year in prison on the
burglary and robbery convictions, to be followed by 5 years of
In the course of the police investigation of the crime scene, officers
discovered three digital scales underneath a futon in one of the bedrooms. In the
closet in this bedroom, the police found a shoebox containing a bag of green
vegetal material, a serving bowl with vegetal residue in it, a pair of scissors,
some small Ziplock bags, and a 150-count box of sandwich bags with vegetal
material in the box. (T.270-72, 274-78, 280-93). Mr. Knighton admitted at trial
that he kept marijuana in the home and smoked it regularly, but denied being a
dealer and claimed that the drugs and paraphernalia were for his personal use.
(T.53-54, 303, 306-12). Although Mr. Knighton was charged with possession of
marijuana and drug paraphernalia, those charges were dismissed. (T.54, 71-72).
affirmed, but the sentence on the burglary count was vacated, as
discussed further below. See People v. Coble, 94 A.D.3d 1520,
1520–21, 943 N.Y.S.2d 352, 353 (4th Dep’t), lv. denied, 19 N.Y.3d
995 (2012). Petitioner timely filed this habeas petition in which
he asserts, as grounds for habeas relief, the same claims raised by
his appellate counsel on direct appeal. Respondent answered the
petition and filed a memorandum of law in opposition. Petitioner
did not file a reply.
For the reasons set forth below, the request for a writ of
habeas corpus is denied, and the petition is dismissed.
Petitioner repeats his claim, raised on direct appeal, that he
was improperly sentenced on a conviction for second-degree burglary
(P.L. § 140.25(1)(d)), despite having been acquitted of the charge
due to the trial court’s failure to address Petitioner’s guilt on
Specifically, at the conclusion of the non-jury
trial, the trial court stated that Harris and McCoy were guilty of
second-degree burglary as a lesser included offense of first-degree
burglary (P.L. § 140.30(1)), as charged in the second count of the
indictment. However, the trial court never disposed of the second
count of the indictment with respect to Coble. Notwithstanding that
omission, the trial court sentenced Coble as if he had been
convicted of second-degree burglary. The prosecution conceded on
direct appeal that the trial court’s failure to dispose of the
second count “constitute[d] a verdict of not guilty with respect to
[that] count[.]” N.Y. CRIM. PROC. LAW § 350.10(5). The Appellate
Division agreed that Petitioner had been acquitted of first-degree
burglary and all lesser included offenses thereof. The Appellate
Division therefore modified the judgment accordingly, by reversing
the part of the judgment convicting Coble of second-degree burglary
under count two of the indictment, and dismissing that count.
People v. Coble, 94 A.D.3d at 1522.
sentencing error is moot, because the Appellate Division gave him
all of the relief that he could potentially receive as to this
claim. See, e.g., Paul v. Ercole, No. 07 CIV 9462CM HBP, 2010 WL
2899645, at *7 (S.D.N.Y. June 10, 2010), rep. and rec. adopted, No.
(“[P]etitioner prevailed [on appeal] on his claim that the sentence
imposed for the count of criminal possession of a weapon in the
third-degree was illegal and that the imposition of DNA databank
fee violated the prohibition against ex-post facto laws. Since
petitioner has received all the relief he sought on these two
claims, these claims are moot.”).
Denial of Fair Trial Due to Failure to Disqualify Witness
Petitioner claims that he was denied a fair trial by the
allegedly tainted testimony of a prosecution witness. This claim
Mrs. Knighton, received communications from courtroom spectators
Mr. Knighton’s testimony, defense counsel moved for a mistrial
based on allegations that various courtroom observers had been
relaying the contents of Mr. Knighton’s testimony to his wife, who
was waiting in the hallway. The trial court conducted an inquiry
into whether any improper conversations had taken place, and
determined that, based on the testimony it heard, a mistrial was
not warranted. (T.120-21). Mrs. Knighton accordingly was permitted
to testify. On cross-examination, Mrs. Knighton denied having
received information regarding the contents of other witnesses’
testimony prior to taking the stand. (T.142).
unpreserved Petitioner’s contention that Mr. Knighton’s testimony
should have been precluded because she violated the order excluding
certain witnesses from observing the trial and that the trial
court’s failure to preclude that testimony deprived him of a fair
trial. The Appellate Division attributed lack of preservation to
defense counsel’s failure to lodge a contemporaneous objection
under C.P.L. § 470.05(2)). In any event, the Appellate Division
held, the contention was meritless, because it was in the trial
court’s discretion to grant an order excluding witnesses from
observing the trial, and the fact that a witness might have
testifying. People v. Coble, 94 A.D.3d at 1521 (citing, inter alia,
People v. Cody, 583 N.Y.S.2d 77, 77 (4th Dep’t 1992) (“The trial
court did not err in permitting the prosecutor’s rebuttal witness
to testify even though she was present in the courtroom during the
testimony presented by the defense. The parties had stipulated to
the exclusion of witnesses from the courtroom. The violation of the
incompetent[.]”) (citing Richardson, Evidence § 462 (Prince 10th
ed.); other citations omitted). The Appellate Division concluded
that the trial court “did not abuse its discretion in permitting
the complainant in question to testify, especially when she was
cross-examined concerning her alleged violation of the order of
exclusion and the court was permitted to consider that violation in
assessing her credibility[.]”
Id. (citation omitted).
“In conducting habeas review, a federal 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, 68
(1991). A habeas petitioner must demonstrate that an allegedly
erroneous state court evidentiary ruling violated an identifiable
constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918,
924 (2d Cir. 1988) (“The [habeas] court must determine whether the
exclusion [of testimony] was an error of constitutional dimension.
(“Erroneous [state court] evidentiary rulings do not automatically
rise to the level of constitutional error sufficient to warrant
issuance of a writ of habeas corpus. Rather, the writ would issue
only where petitioner can show that the error deprived [him] of a
fundamentally fair trial.”) (emphasis in original), cert. denied,
464 U.S. 1000
Generally, a habeas court begins by
ruling.’” Hawkins v. Costello, 460 F.3d 238, 242–44 (2d Cir. 2006)
(quoting Wade v. Mantello, 333 F.3d 51, 59 (2d Cir. 2003)). Here,
the Appellate Division found no error of New York state evidentiary
law, a finding with which this Court agrees. Moreover, Petitioner
has not demonstrated that this evidentiary ruling implicates a
right of constitutional magnitude, as “there is no legal right to
the disqualification of a witness based on the witness’s presence
Yarborough v. Keane, 101 F.3d 894, 898 (2d Cir. 1996) (collecting
cases). Having demonstrated neither an error of state evidentiary
law, nor a violation of a federal constitutional right, Coble is
not entitled to habeas relief on this claim.
Legal Insufficiency of the Evidence
Petitioner reprises his claim that the evidence is legally
because he was charged as a principal rather than as an accessory,
and the evidence failed to establish that he acted as a principal.
The Appellate Division rejected that claim, stating that since
liability as a principal or an accomplice is not an element of the
principal but establish his guilt as an accomplice. People v.
Coble, 94 A.D.3d at 1521 (citations omitted). In any event, the
Appellate Division held, the evidence was legally sufficient to
principal. Id. at 1521-22 (citations omitted).
“[T]he Due Process Clause of the Fourteenth Amendment protects
a defendant in a criminal case against conviction ‘except upon
Virginia, 443 U.S. 307, 315 (1979) (quotation omitted). A court
reviewing claims of insufficient evidence must ask “whether, after
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at
319 (emphasis in original). In other words, the reviewing court
must ask whether the record is “‘so totally devoid of evidentiary
support that a due process issue is raised.’” Bossett v. Walker,
41 F.3d 825, 830 (2d Cir. 1994) (quoting Mapp v. Warden, 531 F.2d
1167, 1173 (2d Cir. 1976). The habeas petitioner’s burden is thus
“very heavy.” United States v. Chang An–Lo, 851 F.2d 547, 553
(2d Cir. 1988).
“When considering the sufficiency of the evidence of a state
conviction, ‘[a] federal court must look to state law to determine
the elements of the crime.’” Ponnapula v. Spitzer, 297 F.3d 172,
179 (2d Cir. 2002) (quoting Quartararo v. Hanslmaier, 186 F.3d 91,
convicted of second-degree robbery, which required the prosecution
to prove that he “forcibly” stole property, and, “in the course of
the commission of the crime or of immediate flight therefrom,” he
or another participant in the crime “displa[ed] what appears to be
a pistol, revolver, rifle, shotgun, machine gun or other firearm.”
N.Y. PENAL LAW § 160.10(2)(b).
Petitioner’s appellate counsel, in his brief, exhaustively
detailed a number of inconsistencies in the Knightons’ and the
police witnesses’ testimony and called into question the veracity
of Mr. Knighton especially, and the accuracy of all the witnesses’
memories. However, “[q]uestions of witness credibility belong to
the fact-finder[.]” Moye v. Corcoran, 668 F. Supp. 2d 523, 539
(W.D.N.Y. 2009). Petitioner’s trial counsel made these arguments
credibility questions in the prosecution’s favor.2 It is not the
province of this Court, sitting in habeas review, to re-examine
questions of witness credibility. See, e.g., Garrett v. Perlman,
438 F. Supp.2d 467, 470 (S.D.N.Y. 2006) (“Petitioner’s specific
argument in support of this [legal-insufficiency] claim, that
King’s testimony was ‘incredible,’ is likewise not reviewable in
Since Petitioner asserted a weight-of-the-evidence claim in addition to his
legal-insufficiency claim on direct appeal, the Appellate Division also reevaluated the complaining witnesses’ credibility. The Appellate Division found
“no basis” for “disturbing [the trial court’s] determination” on credibility
issues, including the weight to be given to the complainants’ backgrounds, and
inconsistencies in the various witnesses’ testimony. People v. Coble, 94 A.D.3d
at 1521-22. The Appellate Division further found that the “inconsistencies in the
witnesses’ testimony raised by [Petitioner] on appeal d[id] not render their
testimony incredible as a matter of law[.]” Id. at 1522 (citations omitted).
province of the jury.”) (citing Maldonado v. Scully, 86 F.3d 32, 35
(2d Cir. 1996) (“[A]ssessments of the weight of the evidence or the
credibility of witnesses are for the jury and not grounds for
reversal on [habeas] appeal.”)).
This petition is subject to the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), which further limits the Court’s role
in determining sufficiency of the evidence claims. The Supreme
Court has made clear that “a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court.
The federal court instead may do so only if the state court
132 S. Ct. 2, 4 (2011) (quotation omitted). Thus, habeas corpus
review of a sufficiency of the evidence challenge now requires a
“doubly deferential” standard of review, insofar as the court must
defer first to the fact-finder’s verdict, and second to the state
court’s determination under the standard set forth in 28 U.S.C.
§ 2254(d). Garbutt v. Conway, 668 F.3d 79, 81 (2d Cir. 2012) (per
curiam). Thus, where the state courts have denied a claim of
legally insufficient evidence on the merits, habeas relief should
not be granted unless “no reasonable court could have held that any
reasonable [fact-finder] could have read the evidence to establish
petitioner’s guilt beyond a reasonable.” Id. at 82 (emphases in
As required by Jackson, this Court has reviewed the evidence
in the light most favorable to the prosecution, and construed in
its favor all permissible inferences arising from the evidence. The
Court then has asked whether it was objectively unreasonable for
the Appellate Division to determine that there was permissible line
of inferences by which a rational fact-finder could conclude that
Petitioner, at least as an accomplice, was guilty of second-degree
Although only McCoy’s DNA was found on one of the handguns,
P.L. § 160.10(2)(b) does not require the charged defendant to have
participant in the crime displayed a firearm. While Mr. Knighton
and Mrs. Knighton differed as to whether Coble or McCoy was the
first defendant who went into the room she was in, both testified
that Coble was in Mrs. Knighton’s room at some point, and that
McCoy also was in that room with her. Mrs. Knighton testified that
Petitioner left his knife, mask and gloves near her daughter’s
bassinet in the bedroom she was in with her daughter; these items
were found near the bassinet by police. It was not objectively
unreasonable for the Appellate Division to conclude that a rational
fact-finder could have inferred that Coble, by remaining in the
room with Mrs. Knighton, intentionally aided McCoy (whose DNA was
found on one of the guns) and Harris in their forcible stealing of
money from Mr. Knighton. Cognizant of the “doubly deferential”
standard applicable to this legal-insufficiency claim, the Court is
unreasonably determined that the record was not “‘so totally devoid
of evidentiary support that a due process issue is raised.’”
Therefore, the Court may not grant habeas relief based on Coble’s
Verdict Against the Weight of the Evidence
Petitioner claims, as he did on direct appeal, that the
verdict was against the weight of the credible evidence under
People v. Bleakley, 69 N.Y.2d 490, 495 (1987). This argument
presents only issues of New York state law and cannot provide a
basis for habeas relief under 28 U.S.C. § 2254(a), which permits
federal habeas corpus review only where the petitioner has alleged
that he is in state custody in violation of the Constitution of the
United States, or of a federal law or treaty. Because Petitioner’s
claim attacking the verdict as against the weight of the evidence
does not present a federal constitutional issues cognizable in this
habeas proceeding, it must be dismissed. E.g., Moye, 668 F. Supp.2d
at 539–40 (collecting cases).
Erroneous Consideration of Lesser Included Offense
Petitioner claims that the trial court improperly considered
counsel’s statement that he did not want lesser offenses considered
as to his client. However, defense counsel did not object to the
trial court’s consideration of the lesser offense during the charge
conference itself (see T.437-439). On direct appeal, the Appellate
Division held that the claim was unpreserved. See People v. Coble,
94 A.D.3d at 1522 (“Defendant’s contention that the court erred in
considering robbery in the second degree as a lesser included
offense of robbery in the first degree (Penal Law § 160.15) and
in convicting him of the lesser included offense is waived inasmuch
thereto[.]”) (citing People v. Ford, 62 N.Y.2d 275, 282–83 (1984)
(“An error by the trial court in submitting or considering a lesser
crime arising out of the same transaction [as the indicted crime]
that is not a lesser included offense does not affect that court’s
competence to entertain the action or to convict of that crime, but
only its authority to enter a judgment on the merits against
defendant on that specific charge in particular facts of that case.
Such an error is not jurisdictional and, pursuant to CPL 300.50,
may be waived if timely objection is not made.”); other citation
Respondent argues that habeas review is foreclosed because the
adequate state procedural ground. See, e.g., Coleman v. Thompson,
501 U.S. 722, 729 (1991) (stating that a federal habeas court may
“not review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the
judgment”; this “rule applies whether the state law ground is
substantive or procedural”). After reviewing the caselaw, the Court
finds that the Appellate Division’s reliance on the contemporaneous
objection rule and People v. Ford, supra, constitutes an adequate
and independent state ground for rejecting Coble’s claim regarding
lesser included offenses as unrepreserved. The state ground is
“adequate,” because it is a firmly established and regularly
analogous to those in Coble’s case; it is clearly “independent”
because the Appellate Division did not consider the merits of the
claim after finding it to be unpreserved. See, e.g., Garvey v.
Duncan, 485 F.3d 709, 720 (2d Cir. 2007) (“[B]ecause § 470.05(2) is
a state law ground on which the New York appellate court’s decision
is based, and that ground is both independent of any federal
followed state law, we will not disturb the state appellate court’s
ruling that the defendant’s protest at trial was insufficient to
preserve the arguments he wishes to raise on appeal.”). Coble has
not attempted to demonstrate cause for the default and prejudice
attributable thereto, or that a fundamental miscarriage of justice
Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977). The Court finds no
basis to excuse the procedural default, and therefore dismisses the
lesser offense claim on that basis.
For the reasons discussed above, Duane Coble’s request for a
writ of habeas corpus is denied, and the petition is dismissed. The
Court declines to issue a certificate of appealability because
Petitioner has not made a “substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2). The Clerk of Court
is directed to close this case.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
March 28, 2017
Rochester, New York
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