Gilbo v. Artus
| Decision Date | 15 January 2013 |
| Docket Number | 9:10-CV-0455 (NAM) |
| Parties | JOHN A. GILBO, Petitioner, v. DALE ARTUS, Respondent. |
| Court | U.S. District Court — Northern District of New York |
PAUL B. LYONS, ESQ.
Ass't Attorney General
Petitioner John A. Gilbo filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges a 2006 judgment of conviction in St. Lawrence County of second degree burglary (N.Y. PENAL LAW §140.25(2)) and two counts of petit larceny (N.Y. PENAL LAW § 155.25). Dkt. No. 1, Petition ("Pet.") at 2; Dkt. No. 10, Respondent's Memorandum of Law ( ) at 1-2. Petitioner raises the following grounds for habeas relief: (1) he was denied the right to proceed pro se at trial; (2) the evidence was insufficient;(3) the verdict was against the weight of the evidence; (4) trial counsel was ineffective; (5) he was improperly sentenced as a persistent felony offender; and (6) the persistent felony offender hearing was unconstitutional. Pet. at 5-6 and attached typed sheet containing Grounds Five and Six. Respondent has filed an answer to the petition, a memorandum of law, and the relevant state court records. Dkt. No. 10, R. Mem.; Dkt. No. 11, Response; Dkt. No. 12, State Court Records. Petitioner has filed a Traverse. Dkt. No. 15, Traverse to Respondent's Opposition ("Traverse").
For the reasons that follow, the petition is denied and dismissed.
On the morning of May 13, 2005, petitioner's nephew, Michael Gilbo ("Gilbo"), drove to his grandmother's house to pick up a set of car ramps for his father. Transcript of Trial of John A. Gilbo ("Trial Tr.") at 217-18, 239-40. Gilbo's infant son was in the car. Id. at 217-18, 239-40. Petitioner, who lived at Gilbo's grandmother's house, went with Gilbo to deliver the car ramps. Id. at 220-22, 237-39. When they arrived, they shared drinks with Gilbo's father and took beer with them for their trip back to Gilbo's grandmother's house. Id. at 240-41. Gilbo drove, petitioner was in the front passenger seat, and Gilbo's son was in a car seat in the back of the car. Id. at 221-24.
During the trip, petitioner asked Gilbo to pull to the side of the road near a house belonging to Joseph White. Trial Tr. at 222-26, 242-43, 255-56; Gilbo, 52 A.D.3d at 953. White left his home earlier that day to run errands, and left his front door unlocked. Id. at 256-60, 263, 270-71. Gilbo stopped the car, and petitioner got out. Gilbo focused on his son,who was crying. Id. at 223-26, 233, 243-44, 254. When petitioner returned to the car, he was carrying a stereo, which he placed in the back seat. Id. at 224, 226-27. Gilbo did not know petitioner intended to take the stereo when he stopped the car. Id. at 224, 227, 234-35, 244-45. White did not give anyone permission to enter his home, and when he returned home and noticed the stereo was missing, he called 911 to report the theft. Id. at 161-62, 259-63, 267, 271-72; Gilbo, 52 A.D.3d at 954.
After he returned to the car with the stereo, petitioner directed Gilbo to drive down a back road and pull into the driveway of another house. Trial Tr. at 227-28, 245-46, 251; Gilbo, 52 A.D.3d at 953. The owner of the house, Russell C. Sprague, saw the car pull into his driveway. Id. at 273-75, 281-82. Petitioner got out of the car and took a chainsaw from a pile of wood next to the driveway. Id. at 227-28, 233. Sprague saw petitioner standing next to the car, and yelled, "Hey." Id. at 276. Gilbo heard Sprague shout ["p]ut it back, it is mine." Id. at 228-29, 236, 247, 251. Petitioner put the chainsaw "between his legs" in the front passenger seat, and told Gilbo to "[t]ake off." Id. at 228-29, 236, 247, 251; 276, 284-85; Gilbo, 52 A.D.3d at 954. The only object near the car was Sprague's chainsaw. Trial Tr. at 274, 276-77. Sprague told his mother to call the police and report that men in a white car took the chainsaw. Id. at 274, 276-77. Sprague followed Gilbo and petitioner in his own car, but lost track of them. Id. at 277, 279, 283-84.
St. Lawrence County Sheriff's Deputy Shawn Wells responded to a radio dispatch that a chainsaw was stolen from a residence and that the thieves were driving down Old Dekalb Road in Canton in a white sedan. Trial Tr. at 287-88, 301, 313-14. Gilbo turned onto the campus of the State University of New York ("SUNY") at Canton, and Deputy Wells followed, ordering the car them to stop. Id. at 229-30, 247-49, 287-92, 297-98, 301-303, 313-16.Deputy Wells asked petitioner where the chainsaw, that was resting against the front passenger seat where he was sitting, came from. Id. at 321, 331-32. Petitioner responded, "[w]hat chainsaw?" Id. at 321; Gilbo, 52 A.D.3d at 954. Petitioner was arrested, and as he was being walked to a patrol car, he stated that he did not know there was a chainsaw in the car. Id. at 321-22, 332. Petitioner was given his Miranda warnings, and Deputy Wells smelled alcohol on petitioner's breath. Id. at 322-25, 331-32. At some point, Gilbo explained to the police how the stereo and chainsaw got into his car. Id. at 232-34. Sprague arrived at the SUNY Canton campus and when he saw petitioner being walked to the patrol car, he shouted, "I think you guys got the guy that got my chainsaw." Id. at 231, 279-80. Sprague described and identified the chainsaw. Id. at 278, 280.
While he was sitting in a patrol car, petitioner told Deputy Wells that he knew about the chainsaw and a man named Fred Compo told petitioner he could pick it up. Trial Tr. at 326-28, 332-34. Petitioner claimed that Compo told him the chainsaw was "sitting beside the road" next to a farm about two and one-half miles past "Coakley's." Id. at 326-28, 332-34. Petitioner stated he was not given the address of the farm and could not explain how he located the farm. Id. at 327-28. Sprague told police, and later testified, that he did not know petitioner and did not give him permission to take the chainsaw, and that he did not recognize the name "Fred Compo." Id. at 277-78, 280-81.
During the investigation, Trooper Amanda Reif arrived and stated that a stereo was reported stolen from a residence. Trial Tr. at 325. Deputy Wells informed petitioner he would be charged with the chainsaw theft and with burglary relating to the stereo. Id. at 328. Joseph White eventually identified the stereo recovered by police. Id. at 262-63, 267.
During the ride to the police station, petitioner began repeating the story about Compoand the chainsaw, and told Deputy Wells that he could "rob any place in Canton," including the police station, and that the police "could do nothing about it." Trial Tr. at 329-30. He also told Deputy Wells that he wanted to be "completely honest." Id. Deputy Wells asked him where the stereo came from, and petitioner responded "[o]h, that came from the house." Id. at 330. When Deputy Wells asked him to elaborate, petitioner stopped speaking. Id.; Gilbo, 52 A.D.3d at 953-54.
On June 20, 2005, petitioner was indicted by a St. Lawrence County grand jury on one county of second degree burglary and two counts of petit larceny. Dkt. No. 12-3, Appendix at 4-5.1 Michael Gilbo was not charged.
On October 11, 2005, petitioner sent a letter to the trial court in which he complained about the amount of bail set, and requested both a change of venue and substitution of counsel. Dkt. No. 12-3, Appendix at 8-9. On October 17, 2005, the court sent petitioner a letter informing him that he should discuss his concerns with counsel, and that he could then make a formal motion to change counsel. Id. at 10. The court further advised that it lacked jurisdiction to entertain petitioner's request for a change of venue. Id.
On October 26, 2005, petitioner's counsel, a member of the Conflict Defender of St. Lawrence County, moved to withdraw from the case. Dkt. No. 12-3,
Appendix, Affirmation of William John Galvin, Esq. in Support of Order to Show Cause, at 12. Counsel explained that he met with petitioner at the St. Lawrence County jail, where petitioner informed counsel that he would not work with him or with any other attorney fromthe Conflict Defender's Office. Id. at 13. Counsel further explained that petitioner was belligerent with his staff in the past and that, at one point, petitioner was forbidden to meet with any of the attorneys at their office, meeting instead at alternate locations. Id. at 13. Counsel stated that petitioner "displayed a distrust of" the Conflict Defender's Office, and his refusal to communicate with counsel, and his lack of respect for counsel and his staff, "frustrated" counsel's "ability to zealously represent" petitioner. Id. Finally, counsel stated that he believed the "attorney-client relationship has been irreparably damaged" and that he could not "effectively represent" petitioner. Id. at 14.
On October 30, 2005, a hearing was held on counsel's motion. Dkt. No. 12-1, Transcript of Hearing on Order to Show Cause ("H."). Petitioner confirmed that he did not have the funds to retain private counsel. H. at 2. The court summarized the content of counsel's affidavit, and told petitioner that he could not obtain a new attorney by being "belligerent to the one you have." Id. The court also told petitioner that if his actions caused counsel to be removed, his relief was to "handle the matters" himself. The court asked petitioner if he agreed with counsel's affirmation, and if he was "prepared to go forward to represent" himself on a Class C felony. Id. Petitioner told the court he was ready for trial and to act as his own counsel. Id. When the court asked petitioner if he wanted the court to relieve counsel and permit petitioner to "go forward as his own counsel," without assigning new counsel, petitioner answered, ...
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