Freeman v. Conway

Filing 32

ORDER denying 28 Motion for miscellaneous relief; denying petition for a writ of habeas corpus and dismissing the petition with prejudice. Signed by Hon. Michael A. Telesca on 8/12/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ANTOINE FREEMAN,
DECISION AND ORDER
No. 09-CV-6326(MAT)

Petitioner,
-vsJAMES T. CONWAY, Superintendent of
the Attica Correctional Facility,
Respondent.
___________________________________
I.

Introduction
Petitioner Antoine Freeman (“Freeman” or “Petitioner”) seeks

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging
the constitutionality of his conviction following a jury trial in
New York State Supreme Court (Monroe County) on one count of third
degree burglary. Petitioner, who was adjudicated as a persistent
felony offender, is currently serving an indeterminate sentence of
fifteen years to life at Attica Correctional Facility.
II.

Factual Background and Procedural History
Freeman’s conviction stems from incident that occurred on

September 23, 2003, at the Hess gas station and convenience store
on Jefferson Road in Brighton. Christopher Hickey (“Hickey”), one
of two employees on duty at the time, testified that at about
8:30 p.m., a black male walked up to him from within the store and
briefly conversed with him.1 The man, who had an unlit cigarette
1

The man asked Hickey if he was interested in buying some power tools. The
content of this conversation was not disclosed to the jury because it might have

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dangling from his lips, was wearing a white shirt, a bracelet on
his left arm, and a hat facing backwards.
When the man had finished his conversation with Hickey, he
walked toward the front of the store and bent down as if reaching
for something. Because boxes and aisles blocked his view, Hickey
could

not

see

straightened

exactly

up,

Hickey

what

the

observed

man
that

was
he

doing.
had

As

picked

the

man

up

two

delivery-type boxes of cigarette cartons, each about three by two
feet in size. The man turned around and left the store, carrying
the boxes.
Hickey was confused because the only place that delivery boxes
of cigarette cartons were located in the store was behind the front
counter or in a back storage area, both of which were off-limits to
store customers. Hickey’s suspicions were confirmed when a customer
told him that she had just observed something odd–a black male had
left the store with some big boxes in his arms.
Hickey went into the back store room where the surplus cartons
of cigarettes were stored in a metal cage, the door of which did
not “look right.” When he touched the door, it fell off its hinges.
Hickey then called the police.
The store’s four video surveillance cameras, which were set
daily to continuously record the front of the store, yielded a

suggested that the man had committed an uncharged crime. Hickey solely was
permitted to testify that he recalled the conversation and person speaking to him
because he thought that it was odd.

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videotape depicting the black male to whom Hickey had spoken, as
well as several still photogrpahs. Hickey identified the individual
depicted

in

both

the

videotape

and

the

still

photographs

as

Freeman.
The jury returned a verdict convicting Freeman as charged in
the indictment of third degree burglary. Following a persistent
felony offender hearing pursuant to C.P.L. § 400.20, the trial
judge adjudicated Freeman as a persistent felony offender and
imposed an indeterminate term of 15 years to life.
On direct appeal, the Appellate Division, Fourth Department,
unanimously affirmed the conviction. People v. Freeman, 38 A.D.3d
1253 (App. Div. 4th Dept. 2007). Leave to appeal to the New York
Court Appeals was denied.
This timely habeas petition followed in which Freeman asserts
the following grounds for relief: (1) a violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000); (2) insufficiency of the evidence;
and (3) erroneous denial of a jury instruction on circumstantial
evidence. After being granted repeated extensions of time, Freeman
filed a motion to amend the petition and to have the petition held
in

abeyance

while

he

exhausts

several

claims

of

ineffective

assistance of trial counsel. Respondent has opposed Freemen’s
motion.

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For the reasons that follow, the request for a writ of habeas
corpus is denied and the petition is dismissed. The motion to amend
and stay is denied with prejudice.
III. Analysis of the Petition
A.

Erroneous Sentencing as Persistent
Offender (Grounds One and Two)

Violent

Felony

Petitioner contends that the sentencing procedure and actual
sentence

imposed

under

New

York’s

persistent

felony

offender

sentencing scheme (New York Penal Law (“P.L.”) § 70.10 and New York
Criminal Procedure Law (“C.P.L.”) § 400.20(1)) violated his Sixth
Amendment right to a trial by jury as explicated by the Supreme
Court in Apprendi and its progeny. On direct appeal, the Appellate
Division rejected this claim as without merit.
The Second Circuit has held that the New York Court of Appeals
reasonably applied clearly established Supreme Court precedent in
holding

that

P.L.

§

70.10

does

not

run

afoul

of

the

Sixth

Amendment’s guarantee to a criminal defendant of a trial-by-jury.
Portalatin v. Graham, 624 F.3d 69, 73, 90–94 (2d Cir. 2010) (en
banc), reversing Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).
Based upon the authority of Portalatin v. Graham, 624 F.3d 69,
Petitioner's

claim

challenging

the

constitutionality

of

his

sentencing as a persistent felony offender under P.L. § 70.10 must
be denied. See Gibson v. Artus, No. 08–1576, 2010 WL 4342198, at *2
(2d Cir. Nov. 3, 2010) (unpublished opinion) (“We recently upheld
New York’s persistent felony offender statute . . . explaining that
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in the enactment of that statute, ‘predicate felonies alone expand
the indeterminate sentencing range within which [a] judge has the
discretion to operate, and that discretion is cabined only by an
assessment

of

defendant’s

criminal

history.’

Under

the

circumstances, the claim that New York’s persistent felony offender
statute violated petitioner’s right to a jury trial under the Sixth
Amendment is without merit.”) (quoting Portalatin, 624 F.3d at 94).
B.

Verdict Not Supported by Legally Sufficient Evidence
(Ground Three)

“‘[T]he Due Process Clause of the Fourteenth Amendment
protects a defendant in a criminal case against conviction “except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.”’” Jackson v.
Virginia, 443 U.S. 307, 315 (1979) (quoting In re Winship, 397 U.S.
358,

364

(1970)).

However,

“a

properly

instructed

jury

may

occasionally convict even when it can be said that no rational
trier of fact could find guilt beyond a reasonable doubt.” Id. at
317. Accordingly, “in a challenge to a state criminal conviction
brought under 28 U.S.C. § 2254 . . ., the applicant is entitled to
habeas corpus relief if it is found that upon the record evidence
adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt.” Id. at 324.
The relevant due process “inquiry does not require a court to
ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
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318 (quotation omitted; emphasis in original). Instead, the Supreme
Court explained in Jackson, the relevant question is whether, after
viewing

the

evidence

in

the

light

most

favorable

to

the

prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Id. at
319. Thus, a petitioner bears a “very heavy burden” in attempting
to obtain a writ of habeas corpus based upon an “insufficiency of
the evidence claim.”

United States v. Carson, 702 F.2d 351, 361

(2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108 (1983);
accord, e.g., Fama v. Commissioner of Corr. Servs.,

235 F.3d 804,

811 (2d Cir. 2000). The responsibility of resolving conflicts in
the

testimony,

weighing

the

evidence,

and

drawing

reasonable

inferences from basic facts to ultimate facts always rests with the
trier of fact. Id. It is not the province of a federal habeas court
to

revisit

a

fact-finder’s

credibility

determinations.

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;” deferring to the jury’s assessments of the
particular

weight

to

be

accorded

to

the

evidence

and

the

credibility of witnesses).
A habeas court first looks to the state law elements of the
crime in performing a sufficiency-of-the-evidence analysis. Under
P.L. § 140.20, “[a] person is guilty of burglary in the third

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degree when he knowingly enters or remains unlawfully in a building
with intent to commit a crime therein.” N.Y. Penal Law § 140.20. “A
person ‘enters or remains unlawfully’ in or upon premises when he
is not licensed or privileged to do so.” N.Y. PENAL LAW § 140.00(5).
“In general, a person is ‘licensed or privileged’ to enter private
premises when he has obtained the consent of the owner or another
whose relationship to the premises gives him authority to issue
such consent[.]” People v. Graves, 76 N.Y.2d 16, 20 (N.Y. 1990)
(citations omitted).
Freeman contends, as he did on direct appeal, that there was
no proof that he consciously was aware that he had no license or
privilege to be in the manager’s office within the store. The
Appellate Division held that the evidence, viewed in the light most
favorable to the People was legally sufficient to support the
conviction. People v. Freeman, 38 A.D.3d 1253, 1254, 833 N.Y.S.2d
777, 778 (App. Div. 4th Dept. 2007) (citing, inter alia, People v.
Salvatore, 178 A.D.2d 566, 567 (App. Div. 2d Dept. 1991) (finding
that defendant knew that he did not have permission to enter
laboratory

area

of

hospital,

and

that

laboratory

area

was

a

separate unit, permitting conviction for burglary; door to the
laboratory bore a clear sign which read “Restricted Area Authorized
Personnel” and defendant’s entire range of reactions showed that he
was unequivocally aware that he had not “obtained the consent of
the owner or another whose relationship to the premises [gave] him

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authority to issue such consent”). This conclusion was a correct
application of federal law.
Respondent points out that the layout of the store clearly
demarcated where the customer area of the store ended and the
“Employees Only” area of building began. Not only was there a door
separating the two portions of the building, the interior design of
the building clearly indicated which portion of the store was for
employees only and which was for customers. The hallway off the
back of the store leading to the manager’s office was much narrower
than the rest of the store, and except for the cartons of beer
piled up near the doorway, there was no other merchandise located
in the hallway so as to suggest that the area was a continuation of
the customer area. On the door separating the customer area from
this hallway hung a sign stating that the area beyond was for
“employees only”, and the sign was fully visible. The manager’s
office/storage area was beyond that hallway and contained no
merchandise other than the cigarette cartons which were triplelocked in a metal cage.
Notably, Freeman never attempted to pay for the cigarettes. In
addition, the door to the cigarette cage had been completely
removed from its hinges. These circumstances belie the innocent
interpretation of the facts suggested by Freemen.
On this proof, for the jury to conclude that Petitioner
believed he had a license and a privilege to be in this “employees

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only” area of store would have been irrational. The evidence was
more than sufficient to establish beyond a reasonable doubt the
element of burglary requiring Freeman to have entered or remained
unlawfully upon the premises in question.
D.

Trial Court’s Denial of Request for a Circumstantial
Evidence Charge (Ground Four)

Petitioner contends that the trial court erred in denying
defense

counsel’s

request

for

a

circumstantial

evidence

jury

instruction on the basis that the prosecution failed to present any
direct evidence proving that Petitioner actually had entered or
been inside the manager’s office in which the cigarette case was
located.
It is well-settled that the propriety of a state court's jury
instructions is generally a matter of state law that does not raise
a federal constitutional question. See Estelle v. McGuire, 502 U.S.
62, 71-72 (1991); Cupp v. Naughten, 414 U.S. 141, 146 (1973).
Rather, to be entitled to habeas relief, a petitioner must show
“not merely that the instruction is undesirable, erroneous, or even
‘universally condemned,’ but that it violated some right which was
guaranteed to the defendant by the Fourteenth Amendment.” Cupp, 414
U.S. at 146. The relevant inquiry, therefore, is “whether the
ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Id. at 147.

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Under New York law, “[w]henever a case relies wholly on
circumstantial evidence to establish all elements of the charge,
the jury should be instructed, in substance, that the evidence must
establish guilt to a moral certainty.” People v. Daddona, 81 N.Y.2d
990, 992 (N.Y. 1993). However, under federal law, which controls in
this habeas proceeding, “it is clear that ‘the Due Process Clause
protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged.’” Clark v. Kelly, No. 98-CV-6230, 2002 WL
31663512, at *6 (W.D.N.Y. Oct. 3, 2002) (quoting In re Winship, 397
U.S. 358, 364 (1970)). Thus, the trial court’s refusal to give the
pattern jury instruction on moral certainty/circumstantial evidence
did

not

abridge

Freeman’s

federal

due

process

rights

to

a

fundamentally fair trial. See Clark, 2002 WL 31663512, at *6
(“[Defense counsel’s failures to object to the jury charge or
request

a

circumstantial

evidence

charge

do

not

amount

to

a

deficiency under Federal law.”).
III.

Petitioner’s Motion for Miscellaneous Relief
Petitioner

has

submitted

a

voluminous

filing

which

was

docketed as a “Motion for Miscellaneous Relief.” (Dkt #28). The
Court interprets the motion as requesting (1) permission to add
unexhausted claims of ineffective assistance of trial counsel and
(2) a stay so that he may return to state court to exhaust them.
Respondent has opposed the motion. (Dkt #29).

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Petitioner

seeks

to

add

claims

that

trial

counsel

was

ineffective in failing to present an alibi defense by calling his
girlfriend, Nellie Hampton, who purportedly would have testified
that he was at home arguing with her at the time of the burglary,
and that he had a cast on his leg. Accordingly to Petitioner, trial
counsel also should have called Marisol Roman, a next-door neighbor
who allegedly saw Petitioner hopping about on one foot with a cast
on his other leg.
Petitioner

To further bolster his alleged alibi defense,

contends

trial

counsel

should

have

subpoenaed

his

medical records, presented evidence of Petitioner’s “identifying
features”, and somehow digitally enhanced the store’s surveillance
photos and videotape to show that the store clerk misidentified him
as the burglar.
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court
limited the district courts’ approval of stay requests to those
situations where there is both a showing by petitioner of “good
cause” for the petitioner’s failure to exhaust the claims in state
court prior to bringing the federal habeas corpus petition and that
the unexhausted claims are not “plainly meritless.” Id. at 277.
Furthermore, because the one-year statute of limitations has run,
the proposed new claims are untimely unless they “relate back” to
the originally pled claims. See Mayle v. Felix, 545 U.S. 644
(2005); FED . R. CIV . P. 15(c)(1)(B).
Here, Freeman plainly cannot demonstrate “good cause” for
failing to have exhausted these ineffective assistance claims

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sooner. He was well aware of the factual grounds for all of the
proposed new claims at the time of trial, and he has offered no
reason why he has waited so long to request permission to exhaust
them. Certainly there has been no suggestion that there were any
official impediments to his instituting exhaustion proceedings at
an earlier time.

In light of Freeman’s inability to demonstrate

“good cause”, it would be an abuse of this Court’s discretion to
grant a stay. Rhines, 544 U.S. at 277-78. Accordingly, Freeman’s
combined motion to stay and amend (Dkt #28) must be denied.
V.

Conclusion
For the reasons stated above, Antoine Freeman’s petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the

petition

(Dkt

#1)

is

dismissed.

Freeman’s

motion

for

miscellaneous relief (Dkt #28) is denied with prejudicie. Because
Petitioner has failed to make a substantial showing of a denial of
a constitutional right, the Court declines to issue a certificate
of appealability. See 28 U.S.C. § 2253(c)(2).

The Court hereby

certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from
this judgment would not be taken in good faith and therefore denies
leave to appeal in forma pauperis.
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:

August 12, 2011
Rochester, New York
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