Dupleasis v. Sheahan
DECISION AND ORDER denying petitioners request for writ of habeas corpus and dismissing the petition (doc. 1). (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Petitioner.) Signed by Hon. Michael A. Telesca on 5/30/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HILLERY DUPLEASIS, 10B2459,
No. 1:14-CV-00475 (MAT)
DECISION AND ORDER
Hillery Dupleasis (“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
January 13, 2012, in New York State Supreme Court, Erie County
(Burns, J.), following a jury trial in which he was convicted of
currently serving a prison sentence of 25 years to life.
Following his conviction, petitioner filed a direct counseled
appeal to the New York State Supreme Court, Appellate Division,
Fourth Department, in which he argued that (1)his conviction was
not supported by legally sufficient evidence; (2) the trial court
abused its discretion by permitting petitioner to be cross-examined
Petitioner was originally tried and convicted of burglary, robbery, and
criminal possession of a weapon. That conviction was reversed on appeal based on
the trial court’s mishandling of a jury note. See People v. Dupleasis, 79 A.D.3d
1777 (4th Dep’t 2010), rearg. denied, 82 A.D.3d 1724. The instant case relates
to petitioner’s retrial.
on certain prior convictions; and (3) his sentence was unduly harsh
Dupleasis, 112 A.D.3d 1318 (4th Dep’t 2013), lv. denied, 22 N.Y.3d
1138 (2014). The Fourth Department found that petitioner’s legal
sufficiency claim was unpreserved and, in any event, meritless. Id.
testimony of petitioner’s accomplice sufficiently established that
petitioner was the individual who shot and killed the victim and
that the homicide took place during the course of a robbery or
testimony was not incredible as a matter of law and that it was
sufficiently corroborated. Id.
The instant petition (doc. 1) contends that (1) the evidence
was legally insufficient to support the verdict and (2) trial
counsel was ineffective for failure to make a motion to dismiss for
legal insufficiency. For the reasons discussed below, the petition
III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
The Fourth Department modified the conviction by removing the DNA
databank fee, which it found the trial court imposed in error. Dupleasis, 112
A.D.3d at 1320.
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Super. Ct. for Judicial
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
“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
IV. Grounds Asserted in the Petition
Petitioner contends that the evidence was legally insufficient
to support his conviction, arguing that the testimony of his
accomplice was incredible and that the evidence did not establish
that the homicide of which he was accused occurred during the
course of a robbery or burglary. As discussed above, the Fourth
Department rejected this claim as unpreserved and without merit.
The Fourth Department’s finding that the claim was unpreserved
constitutes an adequate and independent state law ground precluding
habeas review. See, e.g., Richardson v. Greene, 497 F.3d 212, 218
(2d Cir. 2007) (recognizing New York's contemporaneous objection
rule as an adequate and independent state ground barring habeas
review); Switzer v. Graham, 2010 WL 1543855, *4 (W.D.N.Y. Apr. 16,
Moreover, the Fourth Department correctly found that the
evidence was legally sufficient to support petitioner’s conviction
§ 125.25(3). The evidence at trial established that petitioner
unlawfully entered the dwelling of, and forcibly stole property
from, one Donald Sanok while armed with a deadly weapon, facts
which established the crimes of robbery and burglary. Petitioner
thereafter shot and killed Robert Robinson, who was attempting to
thwart the robbery, in the course of and in furtherance of the
robbery. The facts at trial were thus “sufficient to have led a
rational trier of fact to find guilt beyond a reasonable doubt” as
to every element of the felony murder with which petitioner was
charged. Jackson v. Virginia, 443 U.S. 307, 321 (1979). This claim
is therefore dismissed.
Ineffective Assistance of Trial Counsel
In grounds one and two of his petition, petitioner contends
that trial counsel was ineffective for failing to move to dismiss
the charge of felony murder for legal insufficiency. To establish
ineffective assistance of counsel, a defendant first must show that
“counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and
second, that “there is a reasonable probability that, absent the
errors [by counsel], the fact finder would have had a reasonable
doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668,
consider alleged errors by counsel “in the aggregate.” Lindstadt v.
Keane, 239 F.3d 191, 199 (2d Cir. 2001).
petitioner’s insufficiency claim, finding that it was unpreserved
and meritless. Counsel was not ineffective for failing to make a
meritless motion. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 88, 99
(2d Cir. 2001). This claim is accordingly dismissed.
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 directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
May 30, 2017
Rochester, New York.
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