Burress v. Henderson

• Decision Date: 27 January 1993
• Docket Number: No. CIV-88-1407C.,CIV-88-1407C.
• Citation: 814 F. Supp. 313
• Parties: Michael BURRESS, Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

814 F. Supp. 313

Michael BURRESS, Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.

No. CIV-88-1407C.

United States District Court, W.D. New York.

January 27, 1993.

R. Nils Olsen, Legal Assistance Program, Getzville, NY, for petitioner.

Louis A. Haremski, Asst. Erie County Dist. Atty., Buffalo, NY, for respondent.

CURTIN, District Judge.

Petitioner filed a petition for a writ of habeas corpus challenging his conviction for felony murder, attempted robbery, and criminal possession of a dangerous weapon. Counsel was appointed to represent the petitioner, and the matter was referred to Honorable Carol E. Heckman, United States Magistrate Judge, for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Her report recommends that the petition be denied on the merits without an evidentiary hearing and that no certificate of probable cause be issued. Petitioner has objected to the Magistrate's report; and pursuant to 28 U.S.C. § 636(b)(1), this court is required to make a de novo determination on those portions of the report and recommendation to which objection is made.

Petitioner claims that insufficient evidence was elicited during trial to permit the jury to convict the defendant. Petitioner argues that there was no evidence to support a jury conclusion that petitioner knowingly drove codefendant Battles to the Holiday Inn on Genesee Street. Battles was the individual who shot and killed a police officer during the robbery. During this time, petitioner Burress was in his automobile outside of the Holiday Inn. He claims not to have any knowledge of what Battles was doing during this period.

There was sufficient circumstantial evidence to support the jury's verdict of guilty. That has been reviewed by the Magistrate Judge and need not be repeated here; but I have reviewed it and find that it is sufficient.

Petitioner objects to the Magistrate Judge's conclusion that his Sixth Amendment right to a speedy trial was not violated. Petitioner contends that the delay between his arrest on October 20, 1977, and his trial on May 14, 1979, constituted a denial of his right to a speedy trial. This constituted a 19-month delay and raises a presumptively meritorious speedy trial challenge. The trial court attributed the delay to circumstances surrounding the preparation for trial. There is not reflected in the record any deliberate attempt by either side to delay the record in order to aid or hamper the defense, nor is there any record to substantiate petitioner's argument that the prosecution negligently delayed the trial.

Some periods must be laid to the activities of the petitioner himself; so that as a matter of a constitutional right, there is not sufficient information to conclude that the defendant was not afforded a speedy trial.

Furthermore, petitioner also argues that the jury charge given by the trial judge was incomplete and confusing. The Magistrate Judge concluded that the claim is barred because of a state procedural default. In this connection, the Appellate Division, in affirming petitioner's conviction, ruled that petitioner had failed to comply with N.Y.Crim.Proc.Law § 470.05, which requires that objections to jury charges must be given to the trial court. The court found that no objections to the charge of the court relating to the affirmative defense to felony murder or the charge on intent have been preserved for our review. Therefore, this procedural default barred review of petitioner's challenge to the jury charge. It follows that habeas corpus review of the propriety of the jury instructions is not available. Petitioner has failed to show good cause for his failure to raise objections to the charge at the time of trial.

I have reviewed petitioner's argument that he was not afforded effective assistance of counsel and find that that is without merit.

For the reasons set forth, the Magistrate Judge's report and recommendation is made the judgment of this court, and the petition is dismissed. This court has had an opportunity to make a de novo review of the record and the arguments made in the state court and before the Magistrate Judge and concludes that this petition presents no federal question of substance worthy of the intention of the Court of Appeals. Accordingly, in addition to dismissing the petition, the court denies a certificate of probable cause.

I hereby certify that any appeal from this judgment would not be taken in good faith and deny leave to appeal as a poor person pursuant to 28 U.S.C. § 1915(a). Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, Buffalo, New York, 14202.

So ordered.

REPORT AND RECOMMENDATION

HECKMAN, United States Magistrate Judge.

This habeas corpus petition was referred to the undersigned by the Hon. John T. Curtin to hear and report. For the reasons set forth below, I recommend that the District Court dismiss the petition.

FACTS

Shortly before 1:00 a.m. on October 20, 1977, Dwight Battles entered the Holiday Inn on Genesee Street in Cheektowaga, New York (T. 103).¹ Ronald Antes was the night clerk on duty at the front desk. After inquiring as to the availability of rooms, Battles went behind the desk and pointed a gun at Antes' head (T. 104).

Battles removed currency from the cash register drawer, triggering a silent alarm (T. 105). He then demanded that Antes open the safe in the office at the rear of the desk. Antes explained that he did not have the key to the door concealing the safe, nor did he know the combination to the safe. Battles continued to demand more money, and Antes gave him cash from a cigar box kept in a file cabinet (T. 105-06). Battles then ordered Antes to remove his clothes, and Battles took Antes' watch (T. 106-09).

At this point, the night auditor Mike Siracuse entered the office (T. 109-10). Battles ordered Siracuse to take off his clothes and get down on the floor with Antes (T. 110). Battles then went back out to the front desk (T. 115).

In response to the silent alarm, Cheektowaga Police Officers Robert Walker and David Tolsma arrived at the Holiday Inn during the course of the robbery. Walker and Tolsma entered through the main entrance, and observed Battles standing at the front desk (T. 119-22). Battles turned his head toward the officers, and then turned back toward the desk. As Officer Tolsma stepped back and turned to look down the foyer, Battles turned from the desk, crouched, and began firing, first at Officer Walker and then at Officer Tolsma (T. 123-24).

Walker drew his revolver and returned fire at Battles, who was now moving backwards and sideways toward a service corridor while continuing to fire at Tolsma. Out of the corner of his eye, Walker saw Tolsma fall (T. 125). Battles then directed his fire back toward Walker while proceeding toward the corridor. When he reached the corridor, Battles ran down the corridor to a service exit and escaped (T. 125-27). Officer Tolsma later died as a result of the head wounds he received during this exchange of gunfire.

Diane Constantino was in the lounge at the Holiday Inn that night, and shortly before 1:00 a.m. heard "loud popping sounds" coming from the front desk area (T. 159). She then saw a black male run through the dining room of the lounge, and heard someone say that he had a gun (T. 162). She picked up her things and left the lounge.

She exited the building, got in her car and drove out of the parking lot toward Sugg Road (T. 163). As she was about to make a right onto Sugg Road, she observed a black male driving a white mid-size American-made car with its lights out (T. 165-66).

At approximately 12:55 a.m. that same night, Cheektowaga Police Officers Paul Cramer and Gerald Barber received a call over the radio of their vehicle instructing them to investigate a holdup at the Holiday Inn on Genesee Street (T. 177-78; H. 72). About three-tenths of a mile from the Holiday Inn, the officers observed a white Oldsmobile with its headlights off traveling west-bound on Genesee Street away from the direction of the Holiday Inn (T. 179). Officer Cramer turned his vehicle around and followed the Oldsmobile, stopping it at the entrance for the west terminal of the Buffalo International Airport (T. 180). Officer Cramer approached the Oldsmobile with his revolver drawn, and a black male exited from the vehicle with his hands above his head (T. 180).

Officer Cramer conducted a brief pat-down of the driver, and Officer Barber read him his Miranda rights and conducted a brief search of the vehicle (H. 7-11). The driver consented to a search of the trunk (T. 11). He then produced a New York State driver's license issued to Gary Moore (T. 183-84). He told the officers that he was coming from Erie Community College (H. 9). Pursuant to the officers' request, he followed them to the Holiday Inn for possible identification by the witnesses to the robbery. When no witness identified him, he was released (H. 11, 61).

Later on the morning of October 20, 1977, at approximately 8:00 a.m., several police officers arrived at 91 Laurel Street in the City of Buffalo, which was the home of Lenora Olds Burress, the registrant of the white Oldsmobile stopped by Officers Cramer and Barber (H. 142-43). After entering the residence and questioning Mrs. Burress concerning the automobile, Buffalo City Police Detective Robert Grabowski observed a black male sitting on the couch in the living room (H. 143). Detective Grabowski asked the man his name several times, but received no response (T. 285-86). Grabowski then went into the kitchen and asked Mrs. Burress who the man was. She identified him as her husband, Petitioner Michael Burress (T. 286).

Detective Grabowski immediately ran a spot warrant check on Petitioner, and was informed by the dispatcher that there was an outstanding Buffalo City Court bench warrant for his arrest for failure to appear...