Leeson v. Smith et al
ORDER denying petition for writ of habeas corpus and dismissing the action. Signed by Hon. Michael A. Telesca on 6/1/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DALE LEESON, 05-B-3098,
J.T. SMITH, Superintendent,
Pro se petitioner Dale Leeson (“petitioner”) has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of his conviction of Sodomy in
the Second Degree (N.Y. Penal L. § 130.45(1) (two counts), Sexual
Abuse in the Second Degree (§ 130.60(2)) and Endangering the
following a jury trial before Judge Frederick G. Reed in Ontario
County Court, and was subsequently sentenced to two consecutive
terms of imprisonment of two and one-third to seven years on each
sodomy count, concurrent to one-year terms on the lesser counts.
Factual Background and Procedural History
Petitioner’s conviction stems from a series of incidents that
occurred between August and October of 2003, wherein petitioner,
daughter (“the victim”) of a family friend. Petitioner was charged
with thirty-two counts of various crimes against the victim,
including sodomy, sexual abuse, attempted rape, and endangering the
welfare of a child.
See Ontario County Indictment No. 03-10-154
(Resp’t Ex. C at 6-16).
Petitioner, a close friend of the victim’s mother (“Marie”),
frequently visited the home that she shared with her daughter and
thirteen year-old son (“Mark”), in Ontario County, New York.
According to Marie, petitioner would help the family with household
chores and repairs. T. 70, 108, 186.1 During this time,
befriended the victim, who has learning disabilities and attention
deficit hyperactivity disorder. T. 68, 86. Petitioner bought the
victim clothing, such as blouses and underwear, and games. T. 7475, 129, 189-90. Petitioner also had a daughter, Vicki, who was the
same age as the victim, and the two girls were friends. T. 71, 109,
188. After Vicki visited with petitioner, he would drive her home
to her mother’s house, and the victim would accompany petitioner
with Marie’s permission. T. 72-73, 84, 110, 188, 200.
After petitioner dropped his daughter off, he would then pull
off to the side of a rural road near the victim’s house, while it
was dark outside, and turn off his truck lights. T. 112, 116, 142,
228. Petitioner would then touch the victim’s genitals with his
hands and mouth, and make her touch his penis with her hands and
mouth. He also photographed the victim wearing underwear that he
Citations to “T.__” refer to pages of the trial transcript, “S.__”
refers to the sentencing transcript, and “H.__” refers to the pre-trial
kept in his glove compartment. T. 112-123, 151, 168, 174-76, 179.
According to the victim, petitioner told her that he loved her and
wanted to marry her, and that she should not disclose the incidents
because he would go to jail. T. 118, 124. Although the petitioner’s
actions upset the victim, she was too frightened to tell her mother
about what was happening. T. 124, 134, 150, 177.
Marie also testified to an incident that occurred at her home
in September of 2003, where she observed petitioner lying on a bed
with the victim. The victim’s shirt was pulled up, and petitioner
responded that they were “just sitting there talking and he was
trying to put her to sleep.” T. 76. She further testified that the
victim would regularly sit on petitioner’s lap, or put her head in
his lap, and petitioner referred to the victim as “his special
little girl.” T. 77. Marie acknowledged that she had a criminal
history involving welfare fraud, endangering the welfare of a
child, and selling marijuana. T. 78.
Prior to trial, a combined Huntley/Mapp hearing was held
before the county court, during which the prosecution called as a
witness Ontario County Sheriff’s Investigator James McCaig. Inv.
McCaig testified that, upon investigating the allegations of abuse,
he went to the home of Dorothy Leeson, petitioner’s mother, in the
village of Palmyra, New York, to interview the petitioner. When the
investigator arrived, only petitioner’s mother was at home. He
discussed the allegations with her, explaining that the victim told
him that petitioner had purchased thong underwear for her to wear
and when she last saw the underwear they were located inside the
glove box of a white Toyota pickup truck. Accompanied by Inv.
McCaig, Dorothy Leeson went to petitioner’s pickup truck, which was
parked on her property, and retrieved “two pair of adult sexualtype underwear” from the glove box. Inv. McCaig did not enter
petitioner’s truck. H. 7-9.
When petitioner met with Inv. McCaig at the Sheriff’s office,
petitioner waived his Miranda rights and maintained that he had no
sexual contact with the victim. H. 12. He acknowledged owning a
Polaroid camera, but denied photographing the victim. With regard
to the underwear found in his truck, he told the investigator that
he bought the underwear for his girlfriend, who was very petite,
but would not provide her name or address. H. 13.
In a written decision, the county court held that petitioner’s
mother validly consented to the search of petitioner’s truck, and
petitioner’s subsequent statements. Resp’t Ex. C at 46-47.
The jury found petitioner guilty of two counts of seconddegree
endangering the welfare of a child. He was acquitted of the
totaling four and two-thirds to fourteen years. A permanent order
of protection was issued for the benefit of the victim and her
family. S. 8-9.
Through counsel, petitioner appealed his conviction to the
Appellate Division, Fourth Department, on the following grounds:
(1) the search of petitioner’s truck was illegal and his subsequent
statements were inadmissible as “fruit of the poisonous tree”;
(2) the trial court erred in admitting evidence of uncharged
crimes; (3) the verdict was against the weight of the evidence; and
(4) the petitioner was improperly penalized at sentencing for
supplemental brief, petitioner also asserted the following claims:
(1) the search of petitioner’s truck was unconstitutional; (2) the
grand jury evidence was insufficient; (3) the victim’s testimony
was not corroborated; (4) the verdict was against the weight of the
evidence; (5) prosecutorial misconduct; and (6) trial counsel
dissenting. People v. Leeson, 48 A.D.3d 1294 (4th Dept. 2008). In
the majority opinion, the Appellate Division found that the county
court had properly declined to suppress the evidence seized from
prosecution was permitted to present testimony “that he committed
similar acts with the victim in another county during the same time
frame as that alleged in the indictment herein.” Leeson, 48 A.D.3d
In dissent, two justices opined that the evidence of his
uncharged crimes was admitted solely to prove propensity and that
the error was not harmless. Id. at 1296.
By letter, petitioner’s counsel forwarded the briefs to the
New York Court of Appeals, arguing that the dissenting justices had
correctly concluded that the uncharged crime evidence was not
petitioner subsequently filed an appeal with the New York Court of
Appeals on the grounds that the trial court erred in admitting
evidence of uncharged crimes, and that the search of petitioner’s
truck was unconstitutional. Resp’t Ex. G, H. The New York Court of
Appeals thereafter unanimously affirmed the conviction. People v.
Leeson, 12 N.Y.3d 823 (2009) (Resp’t Ex. L).
Petitioner then filed a timely pro se petition for writ of
habeas corpus in this Court, arguing that: (1) the search of his
truck was unconstitutional; (2) the verdict was against the weight
of the evidence; (3) the verdict was repugnant; (4) the prosecution
failed to disclose Brady material; and (5) the trial court erred in
admitting evidence of uncharged crimes. Petition (“Pet.”) ¶ 22(A)(E).
For the reasons that follow, petitioner is not entitled to the
writ, and the petition is dismissed.
General Principles Applicable to Federal Habeas Review
Standard of Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a
demonstrate that the state court’s adjudication of his federal
constitutional claim resulted in a decision that was contrary to or
involved an unreasonable application of clearly established Supreme
Court precedent, or resulted in a decision that was based on an
presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams
v. Taylor, 529 U.S. 362, 375-76 (2000).
Exhaustion Requirement and Procedural Bar
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that ... the applicant has exhausted
the remedies available in the courts of the State ....” 28 U.S.C.
§ 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838,
843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828
(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion
requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Att’y General, 696
F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048
(1984). “The exhaustion requirement is principally designed to
protect the state courts' role in the enforcement of federal law
and prevent disruption of state judicial proceedings, and is not
satisfied unless the federal claim has been fairly presented to the
(2d Cir.2006) (internal citations and quotation marks omitted).
However, “[f]or exhaustion purposes, ‘a federal habeas court
need not require that a federal claim be presented to a state if it
is clear that the state court would hold the claim procedurally
barred.” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (quoting
Harris v. Reed, 489 U.S. 255, 263 n.9 (1989); other citations
omitted). Under such circumstances, a habeas petitioner “no longer
has ‘remedies available in the courts of the State’ within the
meaning of 28 U.S.C. Section 2254(b).” Grey, 933 F.2d at 120. The
procedural bar that gives rise to the finding that the claim should
be deemed exhausted works a forfeiture and precludes federal court
litigation of the merits of the claim absent a showing of cause for
the procedural default and prejudice resulting therefrom or by
demonstrating that failure to consider the claim will result in a
fundamental miscarriage of justice, i.e., that the petitioner is
actually innocent. See Coleman v. Thompson, 501 U.S. 722, 750
Merits of the Petition
Petitioner’s Fourth Amendment Claim is Barred by
the Doctrine of Stone v. Powell, 428 U.S. 465
Petitioner first contends that the warrantless search of his
pickup truck violated the Fourth Amendment. As he did on appeal,
authority to consent to the search of the vehicle, and the seizure
following the search constituted “fruit of the poisonous tree.”
Pet. ¶ 22(A).
The Appellate Division found that the county court properly
declined to suppress the evidence recovered from petitioner’s truck
and petitioner’s subsequent statements. Leeson, 48 A.D.3d at 1295.
Likewise, the New York Court of Appeals held:
[E]ven assuming that the initial, warrantless
search of defendant's pickup truck was
unlawful, the error was harmless. The only
search, confined to the glove compartment, was
panties. The testimony of the victim and her
mother independently established that the
victim was often alone with defendant in the
pickup truck, and that he bought her panties.
There is no “reasonable possibility that the .
. . [error] might have contributed to the
Leeson, 12 N.Y.3d at 827 (quoting People v Crimmins, 36 N.Y.2d 230,
241 (1975), internal quotation omitted).
The respondent argues that petitioner’s Fourth Amendment claim
provides no basis for habeas relief.
In general, state court defendants are barred from obtaining
habeas relief based upon Fourth Amendment claims. "Where the State
has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted habeas
unconstitutional search or seizure was introduced at his trial."
Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted). The
Second Circuit has noted that Stone requires only that "the state
have provided the opportunity to the state prisoner for full and
Henderson, 568 F.2d 830, 839 (2d Cir.1977) (en banc), cert. denied,
434 U.S. 1038 (1978) (emphasis added).
A federal court may
undertake habeas review only in one of two instances: (1) "if the
state provides no corrective procedures at all to redress Fourth
Amendment violations," or (2) if "the state provides the process
but in fact the defendant is precluded from utilizing it by reason
of an unconscionable breakdown in that process. . . ." Id. at 840;
accord Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992).
litigate his Fourth Amendment claim where the state provides a
“‘statutory mechanism’ for suppression of evidence tainted by an
unlawful search and seizure."
McPhail v. Warden, Attica Corr.
Facility, 707 F.2d 67, 69 (2d Cir.1983).
It is well-settled that
New York affords defendants the requisite corrective procedures.
See N.Y. Crim. Proc. L. § 710.10 et seq.; see also Capellan, 975
F.2d at 70 (noting that "federal courts have approved New York’s
procedure for litigating Fourth Amendment claims, embodied in N.Y.
Crim. Proc. Law § 710.10 et seq. (McKinney 1984 & Supp.1988) as
being facially adequate").
Thus, Petitioner may not raise his
Fourth Amendment claim on habeas review because he was provided
with the opportunity to fully adjudicate these matters in state
In this case, petitioner moved for suppression of two pair of
compartment by the petitioner’s mother and given to Sheriff’s
investigators. The truck was parked at the home of petitioner’s
mother. Resp’t Ex. C at 39-40. Petitioner was afforded hearing on
this matter, after which the county court issued a written decision
denying suppression of this evidence on the basis that police had
a reasonable, good faith belief that permission to search was given
by a person with actual authority to do so, i.e., the petitioner’s
mother. Resp’t Ex. C at 46. He then appealed the trial court’s
determination to the Appellate Division, and received discretionary
review by the state’s highest court. Contrary to petitioner’s
assertion, see Pet’r Reply at 2, it cannot be said that he was
denied an opportunity for full and fair litigation of his Fourth
Amendment claim in state court or that an unconscionable breakdown
occurred in the process. As a result, petitioner is precluded from
Johnson, 828 F.2d 954, 956 (2d Cir.1987)(Habeas petitioner was not
unconstitutional search or seizure was introduced at his trial,
where issue was fully litigated in suppression hearing and was
subject to state appellate review).
Petitioner’s Evidentiary Claim is Without Merit.
Petitioner argues that the trial court erred in admitting
evidence of uncharged crimes, namely, evidence of petitioner’s
similar bad acts with the victim in Penn Yan, New York.
petitioner drove her and her brother to help him clean a house in
Penn Yan. The first incident she recalled was when petitioner told
her brother Mark to steam clean the first floor, while petitioner
went upstairs with the victim and locked them both inside an
office. There, petitioner showed the victim an adult magazine and
committed sexual acts with her. T. 75, 90, 126-28, 153, 154, 163,
191-91, 204. When Mark finished cleaning, he went upstairs and
noticed that the door leading to the office was locked. He knocked
on the door for one or two minutes until petitioner opened the
door. When Mark entered the office, he saw his sister inside,
standing in the bathroom. T. 193. A similar incident occurred
thereafter when petitioner took the victim and her brother to clean
the house in Penn Yan. T. 195-96. The owner of the Penn Yan
building testified that he engaged petitioner to remodel the
downstairs apartment in September, 2003. T. 266.
The Appellate Division held that the admission of evidence of
the uncharged crimes was relevant to a common scheme or plan and to
provide background information2, and that the probative value of
the evidence outweighed any prejudicial impact. Leeson, 48 A.D.3d
contention, finding that,
This testimony did not deprive defendant of a
fair trial. “Evidence of a defendant's prior
bad acts may be admissible when it is relevant
to a material issue in the case other than
defendant's criminal propensity . . . Where
there is a proper nonpropensity purpose, the
decision whether to admit [such] evidence . .
. rests upon the trial court's discretionary
balancing of probative value and unfair
prejudice.” People v Dorm, 12 N.Y.3d 16, 19
(2009). Here, as in Dorm, the uncharged acts
involved the very same victim as the charged
acts. In addition, the uncharged acts were
claimed to have occurred in late August or
early September 2003-during the very same time
period as the crimes that defendant was
accused of committing were alleged to have
happened. As a result, the testimony relating
to the two visits to Penn Yan “provided
necessary background information on the nature
of the relationship” between defendant and the
victim, and “placed the charged conduct in
context.” Id. In short, this testimony was
relevant for a purpose other than defendant's
See People v. Molineux, 168 N.Y. 264 (1901) (evidence of uncharged
crimes or bad acts may be admitted to the extent that it is relevant to show
motive, intent, absence of mistake or accident, common scheme or plan, or
identity of person on trial).
criminal propensity, and its admission by the
trial court was not an abuse of discretion.
Leeson, 12 N.Y.3d at 826.
Because the United States Supreme Court has declined to
determine whether introduction of uncharged crimes would violate
due process, the Appellate Division's rejection of petitioner's
clearly established Supreme Court precedent. See Jones v. Conway,
442 F.Supp.2d 113 (S.D.N.Y.2006) (citing Estelle v. McGuire, 502
U.S. 62, n.5 (1991). Moreover, “[a] decision to admit evidence of
a criminal defendant's uncharged crimes or bad acts under Molineux
constitutes an evidentiary ruling based on state law.” Sierra v.
Burge, 06 Civ. 14432, 2007 WL 4218926, *5 (S.D.N.Y. Nov. 30, 2007).
As such, state court Molineux rulings are generally not cognizable
on habeas review. See Roldan v. Artuz, 78 F.Supp.2d, 260, 276
matters may issue a writ of habeas corpus only if the petitioner
constitutional right and that the error “was so extremely unfair
that its admission violates fundamental conceptions of justice.”
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.1998) (internal
quotation omitted). “For the erroneous admission of other unfairly
prejudicial evidence to amount to a denial of due process, the item
must have been ‘sufficiently material to provide the basis for
conviction or to remove a reasonable doubt that would have existed
on the record without it.’” Id. (quoting Johnson v. Ross, 955 F.2d
178, 181 (2d Cir.1992) and citing Collins v. Scully, 755 F.2d 16,
19 (2d Cir.1985) (evidence must be “crucial, critical, highly
New York law is “well settled that ‘where the evidence of
prior, uncharged criminal conduct has a bearing upon a material
aspect of the People's case other than the accused's general
propensity toward criminality . . . the probative value of the
evidence justifies its admission, notwithstanding the potential for
Dept.2001) (citation omitted). In People v. Dorm, 12 N.Y.3d at 19,
the defendant had been charged with assaulting, imprisoning and
stalking his former girlfriend. The New York Court of Appeals held
that uncharged criminal conduct that the defendant had prevented
the victim from leaving a club, her building lobby and a café was
properly admitted to prove his motive to assault the victim, to
provide background information on the nature of the relationship
and to place the charge in context. Id.
Likewise, in the instant case, the evidence of petitioner’s
sexual acts with the victim in Penn Yan established the nature of
his relationship with her, and it placed the charged crimes in
context: petitioner actively sought opportunities to be alone with
the victim in secluded areas, and used props, such as adult
magazines and women’s underwear, in the course of committing the
crimes. See, e.g., People v. Haidara, 65 A.D.3d 974 (1st Dept. 2009)
(uncharged crimes were properly admitted to explain relationship
between child victim and attacker, and place crimes in context).
Assuming, arguendo, the evidence was erroneously admitted,
petitioner cannot demonstrate that it deprived him of a fair trial.
As stated earlier, an error in admitting evidence may amount to
erroneously admitted evidence was crucial, critical, or highly
significant, “viewed objectively in light of the entire record.”
Collins, 755 F.2d at 19. Absent the evidence of petitioner’s prior
sexual acts with the victim in Penn Yan, the victim’s testimony was
nonetheless consistent with that of her mother and brother, and was
corroborated by the recovery of very small-sized underwear taken
from petitioner’s glove compartment and two Polaroid cameras from
his home. This claim must therefore be dismissed because petitioner
has not set forth a constitutional infirmity arising from the
admission of uncharged crimes.
Petitioner’s Grounds (2) and (3), relating to the verdict and
weight of the evidence,
were raised in petitioner’s appellate
brief to the Fourth Department. They were not, however, fairly
presented to the “highest state court from which a decision can be
had” because petitioner did not seek review of those claims in the
New York Court of Appeals.
Daye v. Att’y General, 696 F.2d at 190
Likewise, petitioner’s fourth ground for relief, which
alleges a Brady violation, was never raised in any state forum.
Accordingly, those claims are unexhausted. While petitioner has
failed to exhaust these claims in state court, they can be deemed
exhausted and procedurally barred because there is no state forum
in which he may now raise the instant claims.
See Ramirez v. Att’y
Genneral, 280 F.3d 87, 94 (2d Cir.2001) (even where federal claim
has not been fairly presented to the state courts, it will be
deemed exhausted if it is subject to a procedural bar under state
Here, petitioner cannot return to state court because he has
already taken the one direct appeal and one application for leave
to appeal to the New York Court of appeals to which he is entitled.
See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir.1991); N.Y. Court R.
600.8 & 500.20. Moreover, he cannot raise his claims challenging
the weight of the evidence and inconsistent verdict in a postconviction motion, because those issues were previously decided on
Nor can he raise his Brady claim in a state motion
for vacatur because the claim is one of record and should have been
raised on direct appeal. See N.Y. Crim. Proc. L. § 440.10(2)(c).
Because he no longer has remedies available in the state courts,
petitioner’s claims must be deemed exhausted and procedurally
barred. See Ramirez, 280 F.3d at 94.
Petitioner’s procedurally barred claims may be reviewed by
this Court only if he can demonstrate either cause for the default
and actual prejudice resulting therefrom, or that the failure to
consider the claims will result in a fundamental miscarriage of
justice. Murray v. Carrier, 477 U.S. 478, 485, 496 (1986). In
determining whether cause exists for a procedural default, the
reviewing court must be careful to limit its inquiry to external
factors that inhibited the petitioner or his counsel from asserting
the claim. Murray, 477 U.S. at 492. A “fundamental miscarriage of
justice” has been described as an “extraordinary case where a
constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Sawyer v. Whitley, 505 U.S. 333,
Petitioner does not address the issue of cause in his petition
or his reply, nor has he offered any new evidence to support the
miscarriage of justice exception. See Schlup v. Delo, 513 U.S. 298,
325 (1995). Petitioner is therefore not entitled to federal habeas
review of his procedurally defaulted claims, and they are therefore
For the reasons stated above, Dale Leeson’s petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
action is dismissed. Petitioner has failed to make a “substantial
showing of a denial of a constitutional right”, 28 U.S.C. § 2253
appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir.2000). 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 as a poor person. Coppedge v. United States, 369
U.S. 438 (1962).
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
June 1, 2011
Rochester, New York
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