Holmes v. Scully
| Decision Date | 15 February 1989 |
| Docket Number | No. CV-87-1715.,CV-87-1715. |
| Citation | 706 F. Supp. 195 |
| Parties | David HOLMES, Petitioner, v. Charles SCULLY, Superintendent, Green Haven Correctional Facility; Robert Abrams, Attorney General of the State of New York; Denis Dillon, Nassau County District Attorney, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
David Holmes, pro se.
Bruce Whitney, Nassau County Dist. Atty.'s Office, Mineola, N.Y., for respondents.
This is a pro se petition for a writ of habeas corpus brought pursuant to 28 U.S. C. § 2254. For the reasons stated below, the court denies the petition in its entirety.
On February 4, 1983, a jury in the New York Supreme Court, Nassau County, convicted petitioner of burglary in the first degree and burglary in the second degree. He was sentenced as a second violent felony offender to consecutive prison terms of 10 to 20 years and 5 to 10 years, respectively. On July 23, 1984, the Appellate Division of the Supreme Court, Second Department, unanimously affirmed the judgment of conviction without opinion. People v. Holmes, 103 A.D.2d 1047, 479 N.Y.S.2d 390 (2d Dep't 1984). The Court of Appeals denied leave to appeal on August 27, 1984. People v. Holmes, 63 N.Y.2d 707, 480 N.Y. S.2d 1033, 469 N.E.2d 109 (1984).
On March 13, 1985, this court dismissed a petition essentially identical to this one1 for failure to exhaust state court remedies as required under Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) and Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
On November 22, 1985, the judge who presided over the trial, County Judge Richard C. Delin, denied petitioner's motion, pursuant to N.Y.Crim.Proc.Law § 440.10 (McKinney 1983 & Supp.1988), to vacate the judgment of conviction. People v. Holmes, Ind. No. 53454 (N.Y.Co.Ct. November 22, 1985). On May 28, 1986, the Appellate Division, Second Department, denied leave to appeal from the denial of the motion to vacate judgment. People v. Holmes, Ind. No. 53454 (2d Dep't May 28, 1986). The state appears to concede that petitioner thereby exhausted the claims presented in the instant petition, which now can be addressed on the merits.
The refiled petition alleges that
1) the state trial court's denial of petitioner's motion for severance of the offenses charged in his indictment violated his right to a fair trial guaranteed by the due process clause of the Fourteenth Amendment;
2) that the trial court should have suppressed certain evidence obtained when the state illegally and unlawfully detained him without arraigning him, in violation of the Fifth, Sixth, and Fourteenth Amendments;
3) that his Sixth and Fourteenth Amendment rights to a fair trial were violated by the introduction of expert testimony concerning a comparison of blood found at one of the burglarized residences with a sample of petitioner's blood;
4) that the imposition of consecutive prison sentences upon him violated the Eighth Amendment's prohibition of cruel and unusual punishment; and
5) that appellate counsel's failure to raise any federal constitutional objections to the admissibility of the blood type analysis (see Claim 3, supra) prejudiced his attempts to win habeas relief and thereby denied him of his Sixth and Fourteenth Amendment right to the effective assistance of counsel.
The following facts are undisputed.
At about 4:00 a.m. on August 25, 1981, Ms. Ann Buller of 572 Dartmouth Street in Westbury awoke in her ground floor bedroom to the sound of her dogs barking. She managed to quiet them down, and then went to the bathroom located on the same floor.
At 4:30 a.m., her neighbor, Ms. Eleanor Franklin of 579 Dartmouth Street (located diagonally across the street from Ms. Buller's house) awoke to the sound of her own dog barking. She followed the dog downstairs to the kitchen where she discovered that a screen window over the kitchen sink had been cut and that the back door was open. Shortly thereafter, her son, Mr. John Franklin, also went downstairs to investigate. There, he observed a man he had never seen before walk from the living room to the front door, which was near the base of the stairs. The stranger turned, looked at Mr. Franklin, pointed a small handgun at him and said, "Get back up the stairs or I'll blow your head off." The intruder left, and Mr. Franklin called the police.
Meanwhile, across the street, Ms. Buller, upon returning to her bedroom, noticed the lights burning in the Franklin house and a police car parked outside, and dashed over in her robe.
The police at the Franklins' had discovered that the hole in the screen was only a foot or two from the back doorknob, and that small pieces of blood-stained green tissue paper — unlike any tissue paper in the Franklin residence — were embedded in the ragged edges of the cut screen. Other blood stains were found on the outside of the house, the windowsill, and the back doorknob.
One of the police officers, Detective Vincent Donnelly, escorted Ms. Buller home at about 6:00 a.m. and then returned to the Franklin house. When Ms. Buller turned on her kitchen light, she saw that the pane of glass next to the doorknob in the back door had been smashed out, and that the back door was open. Ms. Buller ran back to the Franklin house to get the police.
Upon examining the Buller house, the police recovered a piece of blood-stained glass from the floor near the back door. They found that the hallways and mouldings around Ms. Buller's bedroom door were blood-stained, and they followed a trail of bloodstains up the stairs to a bathroom on the second floor. There they discovered that the medicine cabinet was open and a roll of adhesive tape had been taken out and left on the sink. Green tissue papers, from a box in the bathroom, were found, blood-stained, in the bathroom trash can.
On September 18, 1981, at 5:30 a.m., petitioner was arrested for burglarizing a residence at 170 Henry Street in Westbury. He was brought to the Third Precinct House at about 7:40 a.m., where he was read his Miranda rights. When questioned about a healing cut on his wrist, he claimed to have sustained it at the Wilfred Academy, a hairdressing school. He also consented to a police search of his aunt's house, where he resided, and to withdrawal of a blood sample. At 6:13 p.m., Mr. John Franklin identified him in a lineup as the man who had ordered him upstairs at gunpoint on August 25. Petitioner was arraigned the next morning at 9:00 a.m.
Petitioner claims that the state trial court's denial of his motion for severance of the offenses in his indictment violated his right to a fair trial under the due process clause of the Fourteenth Amendment.
As stated above, petitioner was tried and convicted on counts of burglary in the first and second degrees, for the burglaries of the Franklin and Buller residences, respectively. Prior to trial, the state court denied petitioner's motion to sever the two counts, holding that neither the state statutory provisions governing such severances (N.Y. Crim.Proc.Law. § 200.20(2) and (3)) nor the "interest of justice" required granting the motion.2
Petitioner claims that the denial of severance forced him to waive his right to testify concerning one of the counts of the indictment in order to preserve his right to remain silent as to the other count. He does not describe the testimony he would have given, or how his inability to so testify prejudiced him; in fact, he does not even specify which count he would have testified about.
The court in Alvarez v. Wainwright, 607 F.2d 683 (5th Cir.1979) rejected such a claim. In that case, petitioner had been tried on two counts of manslaughter by culpable negligence, two counts of manslaughter by an intoxicated motorist, temporary unauthorized use of a motor vehicle, and larceny of a firearm. He was convicted on the two counts of manslaughter by culpable negligence and was acquitted on all of the other charges. Before trial and at the close of the government's case, petitioner moved to sever the larceny of a firearm and unauthorized use of a motor vehicle charges from the manslaughter charges, but the trial court denied the motions.
In seeking habeas relief, petitioner claimed that he had wanted to testify as to the larceny of a firearm and unauthorized use of a motor vehicle charges, but did not want to testify as to any of the manslaughter charges. The Fifth Circuit, affirming the district court's denial of the habeas petition, held that "severance is not mandatory simply because a defendant indicates that he wishes to testify on some counts but not on others." 607 F.2d at 685. The court held that, before habeas relief could be granted due to an allegedly erroneous joinder of offenses, petitioner must show that joinder rendered the state trial "fundamentally unfair,"3 which in turn requires "as a minimum" that petitioner show prejudice sufficient to warrant relief under Fed.R.Crim.P. 14 or its state equivalent. Id. (emphasis in original).4 In holding that petitioner had not met this burden, the Fifth Circuit noted that he had given "no indication concerning why he did not want to testify on the manslaughter counts or what testimony he would offer on the other crimes ..." 607 F.2d at 686 (emphasis in original). Thus, petitioner had failed to demonstrate even the degree of prejudice necessary for severance in a non-habeas context:
No need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it...
To continue reading
Request your trial
-
Cotto v. Fischer
...18). Fourth Amendment claims are not ordinarily subject to review in federal habeas court proceedings. See, e.g., Holmes v. Scully, 706 F. Supp. 195, 200-01 (E.D.N.Y. 1989). Under Stone v. Powell, a federal habeas court may not review the merits of a Fourth Amendmentclaim if the state has p......
-
Corchado v. Rabideau
...in N.Y.CRIM. PROC. LAW § 710.10 et seq ...., as being facially adequate." Capellan, 975 F.2d at 70 n. 1 (quoting Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y.1989); citing Gates v. Henderson, 568 F.2d 830, 837 & n. 4 (2d Cir.1977), Shaw v. Scully, 654 F.Supp. 859, 864 (S.D.N.Y.1987)). Pu......
-
Grimes v. Goord
...they have only done so as part of an analysis, pursuant to the Fifth Amendment, of the voluntariness of confessions. Holmes v. Scully, 706 F.Supp. 195, 203 (E.D.N.Y.1989); Sklar v. Ryan, 752 F.Supp. 1252, 1264 (E.D.Pa.1990) ("An undue delay between arrest and arraignment only gives rise to ......
-
Folger v. Conway
...§ 710.10 et seq. (McKinney 1984 & Supp.1988), as being facially adequate.'" Capellan, 975 F.2d at 70 n. 1 (quoting Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y.1989) and citing Gates, 568 F.2d at 837 & n. 4; Shaw v. Scully, 654 F.Supp. 859, 864 (S.D.N.Y. 1987)). Rather, he contends that ......