Barney v. Conway

• Decision Date: 06 August 2010
• Docket Number: No. 03-CV-0758(VEB),03-CV-0758(VEB)
• Parties: Steven BARNEY, Petitioner, v. James T. CONWAY, Superintendent, Attica Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

730 F.Supp.2d 264 Steven BARNEY, Petitioner, v. James T. CONWAY, Superintendent, Attica Correctional Facility, Respondent. No. 03-CV-0758(VEB). United States District Court, W.D. New York. Aug. 6, 2010.

Steven Barney Elmira, NY, for Petitioner.

Donna A. Milling, Erie County District Attorney's Office, Buffalo, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. BACKGROUND

Pro se petitioner Steven Barney ("Barney" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Barney originally was charged on September 25, 1998, in Erie County in a two-count indictment with second degree (intentional) murder and third degree criminal possession of a weapon based upon allegations that he stabbed Ronald Hardy to death with a knife in the entrance area of an apartment complex in the City of Buffalo. At trial which, commenced on February 8, 1999, and concluded on February 26, 1999, trial counsel for Barney presented a theory of justification (self-defense). The jury agreed, acquitting Barney of the murder charge. However, the jury found Barney guilty of the weapons-possession charge, a class D felony. Following a predicate felony hearing under New York Criminal Procedure Law ("C.P.L.") 400.20, the trial court adjudicated Barney as a persistent felony offender and imposed an indeterminate sentence of 15 years to life.

While the instant habeas petition was pending in this Court, Barney filed a pleading in Erie County Court denominated as a "Motion Pusuant [sic] to C.P.L. Section 440.30[sic] ¹ to Set Aside Sentence and to Vacate Judgment." Barney stated that his motion was based upon the following grounds: (1) "[b]y virtue of the jury acquitting the defendant of Intentional Murder, finding that the defendant was JUSTIFIED, the remaining count of Criminal Possession of a Weapon in the 3rd Degree, 265.01(2), under the People's theory to the Grand Jury and embodied in the Bill of Particulars, was JURISDICTIONALLY DEFECTIVE", and (2) "Improper and Prejudicial conduct on the part of the trial court and sentencing court not appearing on the record operated to deny the defendant his Constitutional Right to a fair trial, when" (a) the "Trial court communicated Ex Parte with the Prosecution and the District Attorney, without informing the defense of such communication"; (b) the trial court "unfairly predetermined the defendant to be a Persistent Felony Offender, prior to the start of the hearing designed to make such a determination"; (c) the trial court "unfairly used the charge the jury acquitted the defendant of, in it's [sic] determination to sentence the defendant to 15 years to life for the Criminal Possession of a Weapon in the 3rd Degree count"; and (d) the "Very Fact that the determination made by the court to determine that the defendant was a Persistent Felony Offender was in violation of the defendant's U.S. Constitutional Right to Due Process." See Petitioner's Notice of C.P.L. §§ 440.10/440.20 Motion at pp. 1-2; see also Petitioner's Memorandum of Lawin Support of C.P.L. §§ 440.10/440.20 Motion at pp. 16-19.

Barney's supporting affidavit reiterated his claim of self-defense. He also stated that when his appellate counsel sent him a copy of the appellate brief submitted on his behalf, he learned for the first time that "a juror named Judy Owen wrote Pat Carrington, the Prosecutor ... a letter ... and that the letter was sent to the judge ... back in March 1999, right after [he] was convicted of the Weapon charge." Petitioner's Affidavit at p. 4.² He discovered at that time that "the judge wrote Frank Clark, the Erie County District Attorney and spoke about [his] case and How [he] won the Battle but lost the War." Id.

At the same time he filed his motion to vacate in July 2005, Barney also submitted a memorandum of law in support of a motion to have the judge recuse herself. See Petitioner's Memorandum in Support of Motion for Recusal dated July 17, 2005.

The prosecution filed an Opposing Affidavit noting that Barney was seeking recusal of the sentencing judge from ruling on his motion and vacatur of his conviction and sentence on the grounds that (1) his conviction of third degree criminal possession of a weapon is repugnant to his acquittal of second degree (intentional) murder; (2) that the trial court pre-determined his status as a persistent felony offender prior to conducting a hearing; and (3) he was improperly sentenced as a persistent felony offender in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004). See People's Opposing Affidavit, at p. 2, ¶ 6.

Judge DiTullio issued a written decision and order denying the C.P.L. §§ 440.10/440.20 Motion and the Motion for Recusal on August 11, 2005. The Appellate Division denied leave to appeal.

II. APPLICABLE LEGAL PRINCIPLES

A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254

Federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Thus, to be entitled to habeas relief, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. Id. at 68, 112 S.Ct. 475.

A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by theSupreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), the state court must base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.2001). It is not necessary for the state court to refer to the federal aspect of a claim or to any federal law for the deferential standard to apply. Id. at 312. A state court determination of a factual issue is "presumed to be correct" and the petitioner bears the burden of rebutting that presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. at 405-06, 120 S.Ct. 1495. Williams also held that habeas relief is available under the "unreasonable application" clause "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411, 120 S.Ct. 1495. Rather, the state court's application must have been "objectively unreasonable." Id. at 409, 120 S.Ct. 1495.

III. DISCUSSION

A. Racial Discrimination By the Prosecutor During Jury Selection

Barney argues that the prosecutor's use of a peremptory challenge to strike Gloria Eccles, an African-American juror, violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), recognizing that "[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure," the Supreme Court held that the guarantees of the Equal Protection Clause apply to the exercise of peremptory strikes. 476 U.S. at 89, 106 S.Ct. 1712. Therefore, a state prosecutor may not "challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id.; accord, Purkett v. Elem, 514 U.S. at 767, 115 S.Ct. 1769; Hernandez v. New York, 500 U.S. 352, 355, 358, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Borrowing from the burden-shifting model used in its other discrimination jurisprudence, the Supreme Court in Batson outlined a three-step process for determining whether a party has used its challenges in an unconstitutionally discriminatory manner. See 476 U.S. at 93-94 & n. 18, 106 S.Ct. 1712 (citing, inter alia United States Postal Serv. Bd. of Gov. v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)); accord Purkett.

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisiteshowing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712). In other words, once a party opposing a Batson motion responds by explaining the reason for the peremptory...