Ely v. Lempke

• Decision Date: 18 October 2012
• Docket Number: 09 Civ. 5836 (RA)(HBP)
• Parties: LANCE ELY, Petitioner, v. JOHN B. LEMPKE, Respondent.
• Court: U.S. District Court — Southern District of New York

LANCE ELY, Petitioner, v. JOHN B. LEMPKE, Respondent.

09 Civ. 5836 (RA)(HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 18, 2012

REPORT AND RECOMMENDATION

PITMAN, United States Magistrate Judge:

TO THE HONORABLE RONNIE ABRAMS, United States District Judge,

I. Introduction

Petitioner Lance Ely seeks, by his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, an Order vacating a judgment of conviction imposed on November 27, 2003 after a jury trial, by the Supreme Court of the State of New York, New York County (Grella, J.), for one count of burglary in the second degree, in violation of New York Penal Law Section 140.25(2) (Petition for a Writ of Habeas Corpus, filed Jun. 25, 2009 (Docket Item 2)("Petition") at 1). Pursuant to that judgment, petitioner was sentenced as a persistent violent felony offender to a indeterminate term of imprisonment of twenty years to life. Petitioner is currently incarcerated pursuant to that judgment.

For the reasons set forth below, I respectfully recommend that the petition be denied.

II. Facts

A. Facts Giving Rise to Petitioner's Conviction

Petitioner's conviction arises from a burglary that took place in March 2003. The evidence offered at trial established the following facts.

On March 28, 2003, Donna Bubash resided in a fifth-floor apartment located in lower Manhattan (Tr.¹ 27). At approximately 2:00 p.m., Bubash came out of the bathroom of her apartment and discovered petitioner in her bedroom, holding her purse (Tr. 28-29). Bubash asked petitioner to identify who he was and why he was there, and he replied that he was a messenger (Tr. 29). Upon further inquiry, however, petitioner asked Bubash to let him leave, promising not to "do this again" (Tr. 32). Bubash took her purse back from petitioner, and escorted him out of her apartment (Tr. 30-31). Petitioner was detained byconstruction workers from a neighboring apartment until the police arrived (Tr. 36-37, 111-12, 120). In petitioner's shoulder bag, the police found a screwdriver and an employee identification card from a messenger service for which petitioner had formerly worked (Tr. 113-16, 122-23).

Petitioner was charged with burglary in the second degree possession of burglar's tools in violation of New York Penal Law Sections 140.25(2) and 140.35, respectively (Petition 1; Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus, filed Dec. 14, 2009 (Docket Item 7)("Opp'n Memo.") at 2).

B. Trial Court Proceedings

Petitioner's trial began on September 15, 2003 (Tr. 1). The prosecution's case largely consisted of testimony establishing the foregoing events. Petitioner presented no evidence is his defense (Tr. 196-97).

The jury found petitioner guilty of burglary in the second degree (Tr. 308).²

On November 17, 2003, petitioner appeared for sentencing (S. Tr.³ 1). The prosecutor submitted a statement that petitioner had been previously convicted of two or more felonies (S. Tr. 2-3). Petitioner did not dispute his prior felony convictions, arguing instead that the sentencing proceeding was illegal under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the Court was relying on information not presented to the jury in determining his sentence (S. Tr. 3-4). The Court, rejecting petitioner's arguments, determined that petitioner was a persistent violent felony offender and sentenced him to an indeterminate term of twenty years to life (S. Tr. 14-16).

C. Post-Conviction Proceedings

1. Direct Appeal

Petitioner, assisted by counsel, appealed his conviction to the Appellate Division of the Supreme Court for the First Department. Petitioner asserted three claims on appeal:

1. Appellant was denied his due process right to a fair trial by the prosecutor's pervasive misconduct in (a) mischaracterizing the defense, vouching for the People's witness, and expressing his personal belief in appellant's guilt; (b) introducing testimony tending toestablish appellant's propensity to commit burglary and exploiting it during his summation. U.S. Const. Amend. XIV; N.Y.S. Const. Art I, § 6.

2. Appellant's sentence of twenty years to life imprisonment as a persistent violent felon pursuant to P.L. § 70.08 and C.P.L. § 400.16 violated his rights to notice of the charges against him, to a jury trial and to due process of law, as the enhanced sentence was premised upon the existence of two violent predicate convictions, were the existence of the prior convictions was neither submitted to a jury not contained in an indictment. U.S. Const. Amends. VI & XIV; N.Y. Const., Art 1, §§ 2, 6, Art. VI, § 18; Apprendi v. New Jersey, 530 U.S. 466 (2000).

3. In light of appellant's tragic family history and his failure to cause anyone physical harm during the commission of a crime, appellant's sentence of 20 years of life is excessive.

(Brief for Defendant-Appellant, dated April 2006 ("Pet. App. Br."), annexed as Exhibit A to Declaration in Opposition to the Writ of Habeas Corpus, filed Dec. 14, 2009 (Docket Item 8) ("Opp'n Decl.") at 2).

The Appellate Division affirmed petitioner's conviction on November 27, 2007, stating, in pertinent part:

The court properly exercised its discretion in denying defendant's mistrial motion, made on the ground that a portion of the prosecutor's summation shifted the burden of proof. The remarks in question were responsive to defendant's summation and did not mislead the jury as to the appropriate burden of proof. As to defendant's remaining summation claims, and his related evidentiary argument, there was nothing in the prosecutor's conduct that was so egregious as to warrant reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People vD'Alessandro, 184 AD2d 114, 118-119 [1992], lvdenied 81 NY2d 884 [1993]).

Defendant's constitutional challenge to the procedure under which he was adjudicated a persistent violent felony offender is without merit (see Almendarez-Torres v United States, 523 US 224 [1998]). We perceive no basis for reducing the sentence.

People v. Ely, 45 A.D.3d 466, 466, 845 N.Y.S.2d 734, 734 (2007).

Petitioner, again assisted by counsel, sought leave to appeal to the New York Court of Appeals (Letter to the Honorable Judith S. Kaye, dated Dec. 7, 2007, annexed as Exhibit D to Opp'n Decl., at 1). The Court of Appeals denied petitioner's application without opinion on March 26, 2008. People v. Ely, 10 N.Y.3d 810, 886 N.E.2d 809, 857 N.Y.S.2d 44 (2008).

2. Motion to Vacate and Motion to Re-sentence

By a pro se motion dated August 13, 2007, filed in New York Supreme Court, petitioner sought to vacate the judgment of the Trial Court pursuant to New York Criminal Procedure Law Sections 440.10 and 440.30 (Notice of Motion to Vacate Judgment Pursuant to CPL § 440.10 & 440.30, dated Aug. 13, 2007 ("Pet. Mot. to Vacate"), annexed as Exhibit F to Opp'n Decl., at 1). Petitioner articulated his claims in this motion as follows:

(i) no probable cause was shown during the preliminary hearing concerning justification for continuedincarceration due to a lack of prima facie evidence [sic] (CPL § 140.30[4] & CPL § 70.10[1][2]; and CPL § 190.30;

(ii) the Prosecutor as a matter of law did not have legal control and jurisdiction over a "bona fide" "Complainant Affiant" claiming to be a victim as required by section 37-a, and 39 of the General Construction Law;

(iii) that as a result of the prosecution willfully and knowingly making a direct presentation before the grand jury with less than hearsay information which could not be corroborated as required, and such evidence having no probative value the Grand Jury Proceedings are defective and [l]egally inadequate as a matter of law to sustain a vote to indict. See CPL 210.35(5); and 70.10[1]; and

(iv) the Prosecutor committed prosecutorial misconduct in violation of their code of Ethics and defendant right of access to section 440.10, and 440.30 [sic];

(v) and the court's imposed surcharge must be made null and void when no record exist[s] to substantiate any victim or gain from the commission of a crime [sic] the defendant is alleged to have benefit from in absence of a required hearing [sic] (CPL § 400.40[1]), and remission of any imposed fine, restitution, reparation or surcharge must be adjusted accordance with section 430.20, subd. (2).

(Pet. Mot. to Vacate at 2).

In a separate motion, dated August 16, 2007 and also filed in New York Supreme Court, petitioner sought re-sentencing pursuant to New York Criminal Procedure Law Sections 420.30(2) and 420.10(1) (Notice of Motion for Re-Sentence Pursuant to CPL § 420.30(2), dated Aug. 16, 2007 ("Pet. Mot. to Re-sentence"),annexed as Exhibit G to Opp'n Decl., at 1). Petitioner re-alleged the fifth ground from his motion to vacate, namely, that the imposition of a mandatory surcharge of $210.00 without an administrative hearing was an error, and requested that the surcharge be remitted back to him (Pet. Mot. to Re-sentence at 1).

In a decision dated February 15, 2008, the Supreme Court (Pickholz, J.) denied petitioner's motion to remit the mandatory surcharge and crime assistance fee of $210.00, holding that it was not a "fine" for purposes of New York Criminal Procedure Law Section 400.30 and, thus, no hearing was required (Decision, dated Feb. 15, 2008, annexed as Exhibit I to Opp'n Decl., at 1-2). In a separate decision dated February 28, 2008, the Supreme Court (Pickholz, J.) denied the remainder of the claims raised in petitioner's motion to vacate because petitioner "could have raised each of these claims upon appeal, as they are apparent from the face of the record" (Decision, dated Feb. 28, 2008, annexed as Exhibit H to Opp'n Decl., at 3). Alternatively, the Court denied the claims as meritless (Decision, dated Feb. 28, 2008, annexed as Exhibit H to Opp'n Decl., at 4).

Petitioner's application for leave to appeal from these two decisions was denied by the Appellate Division without opinion on July 1, 2008. People v. Ely, 2008 N.Y. Slip. Op.76499(U)...