Kimbrough v. Bradt

• Decision Date: 11 June 2013
• Docket Number: No. 9:12–CV–0034 (DNH).,9:12–CV–0034 (DNH).
• Citation: 949 F.Supp.2d 341
• Parties: Eugene F. KIMBROUGH, Petitioner, v. M. BRADT, Superintendent, Respondent.
• Court: U.S. District Court — Northern District of New York

949 F.Supp.2d 341

Eugene F. KIMBROUGH, Petitioner,

v.M. BRADT, Superintendent, Respondent.

No. 9:12–CV–0034 (DNH).

United States District Court,

N.D. New York.

June 11, 2013.

Eugene F. Kimbrough, Stormville, NY, Petitioner, pro se.

Eric T. Schneiderman, New York State Attorney General, Michelle E. Maerov, Esq., Ass't Attorney General, New York, NY, for Respondent.

DECISION AND ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Petitioner Eugene F. Kimbrough has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Dkt. No. 1, Petition (“Pet.”).¹ Petitioner's state custody arises from a judgment of conviction entered in Onondaga County Court, following a jury trial, of attempted aggravated assault upon a police officer, burglary, and criminal possession of stolen property. Pet. at 1. Respondent has filed a response to the petition, a memorandum of law, and the relevant state court records. See Dkt. No. 11, Response; Dkt. No. 11–1, Respondent's Memorandum of Law (“Resp't Mem.”); Dkt. Nos. 13–14, State Court Records. Petitioner has also filed a reply. Dkt. No. 16, Petitioner's Traverse (“Traverse”). For the reasons that follow, the petition will be denied and dismissed.

II. BACKGROUNDA. Petitioner's Crime and Arrest

On January 11, 2005, while responding to a silent burglar alarm at 200 Twin Oaks Drive in Dewitt, police officers observed petitioner exit an unoccupied building. See Dkt. No. 13, Ex. H, Petitioner's Appellate Brief (“Appellant Br.”) at 2. Petitioner ignored a directive to stop, entered a stolen vehicle parked on the premises, and drove directly toward at least one officer on the scene. Id. The car accelerated at a fast rate, and the responding officers discharged their weapons into the vehicle in an effort to stop petitioner. Id. at 3. Petitioner was shot several times. Id. The vehicle eventually came to rest in a ditch, and petitioner was arrested. Id.

As a result of the foregoing, petitioner was charged with attempted aggravated assault on a police officer, third-degree burglary, and criminal possession of stolen property. See Appellant Br. at 3.²

Following a jury trial in which petitioner did not contest the burglary or stolen property charges, petitioner was convicted on all counts. See Appellant Br. at 4. Petitioner attempted to defend the assault charge on the theory that he was not acting with intent to cause physical injury to any responding officer, but rather was attempting to flee the scene while being fired upon. Id. The trial court sentenced petitioner to a total aggregate sentence of twenty-six years and six months. Id.

B. Direct Appeal and Collateral Attacks on the Verdict

On January 9, 2009, petitioner moved to vacate his conviction pursuant to N.Y.Crim. Proc. Law section 440.10. See Dkt. No. 13, Ex. A, Motion to Vacate Judgment (“Mot. to Vacate”) at 2.³ In his motion, petitioner argued that (1) his conviction was obtained through the introduction of false evidence; (2) certain “material” facts relative to the sufficiency of the evidence were not included in the record; (3) each of his three appointed attorneys provided ineffective assistance; (4) the jury engaged in misconduct by conducting their deliberations in an elevator; and (5) the trial court conducted an improper arraignment where he was denied the right to enter a plea. Id. at 6–43.

On April 9, 2009, the trial court denied petitioner's motion in full. See Dkt. No. 13, Ex. D, Decision and Order. First, the court held that petitioner's legal sufficiency and prosecutorial misconduct claims could not be raised in a motion to vacate since “sufficient facts appear on the record ... to permit an adequate review on appeal.” Id. at 2 (citing N.Y.Crim. Proc. Law § 440.10(2)(b)). The court next dismissed petitioner's ineffective assistance claims because they were unsupported by sworn allegations of fact. Id. Alternatively, the court held that these claims had no merit. Id. at 2–3. Finally, the court held that petitioner's contention that the jury deliberated in the elevator was unsupported by the record. Id. at 4. The court did not address petitioner's challenge to his arraignment. See id. at 1–4.

Petitioner sought leave to appeal this decision to the Appellate Division, Fourth Department. See Dkt. No. 13, Ex. E, Motion for Leave to Appeal. ⁴ In his leave application, however, petitioner raised only the following issues: (1) he received ineffective assistance from counsel; and (2) his conviction and indictment were procured through false testimony and prosecutorial misconduct. Id. at 10–27. On January 19, 2010, the Appellate Division denied petitioner's leave application. See Dkt. No. 13, Ex. G, Appellate Division Order Denying Leave.

Petitioner also filed a direct appeal with the Appellate Division, in which his assigned appellate counsel argued that: (1) the conviction for attempted assault was based on legally insufficient evidence, or, in the alternative, was against the weight of the evidence; and (2) petitioner's sentence was excessive. See Appellant Br. at 5, 20. Petitioner submitted a pro se supplemental brief, which raised the following additional claims: (1) the trial court deprived him of his right to self-representation; (2) he did not receive the effective assistance of trial counsel; and (3) he was deprived of his right to representation during arraignment. See Dkt. No. 13, Ex. J, Appellant's Pro Se Brief at 4, 9–14.

On November 13, 2009, the Appellate Division affirmed petitioner's conviction. See People v. Kimbrough, 67 A.D.3d 1340, 1340–41, 887 N.Y.S.2d 908 (N.Y.App.Div. 4th Dep't 2009). First, the court held that petitioner had “failed to preserve for our review his contention that the conviction [of attempted assault] is not supported by legally sufficient evidence inasmuch as his motion for a trial order of dismissal with respect to that [crime] was not specifically directed at the grounds advanced on appeal.” Id. at 1340, 887 N.Y.S.2d 908 (citing People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 (1995)). The court further held that the conviction was not against the weight of the evidence when considering the elements of the crime as charged to the jury. Kimbrough, 67 A.D.3d at 1341, 887 N.Y.S.2d 908. As to his sentence, the court held that it was “not unduly harsh or severe.” Id. The court did not address the claims raised by petitioner pro se because his brief was untimely submitted. See Dkt. No. 13, Ex. O, Petitioner's Letter to Court of Appeals, Jan. 23, 2010.

Petitioner sought leave to appeal the arguments raised in his counseled appellate brief. See Dkt. No. 13, Ex. M, Request for Leave to Appeal. On March 4, 2010, the New York Court of Appeals denied the application for leave to appeal. See Dkt. No. 13, Ex. Q, Certificate Denying Leave.

On March 29, 2011, petitioner filed a pro se motion for a writ of error coram nobis with the Appellate Division. See Dkt. No. 13, Ex. R, Motion for Writ of Error Coram Nobis. Petitioner argued that his appellate counsel was ineffective for failing to submit the following meritorious claims on direct appeal: (1) whether petitioner was deprived of his constitutional right to self-representation; (2) whether petitioner's trial counsel provided ineffective assistance; and (3) whether the prosecution withheld exculpatory evidence. Id. at 4–15.

On July 11, 2011, the Appellate Division denied petitioner's motion. See Dkt. No. 13, Ex. U, Order Denying Coram Nobis Motion. The New York Court of Appeals thereafter denied petitioner's request for leave to file an appeal of this motion. See Dkt. No. 13, Ex. V, Order Denying Leave. This action habeas action followed.

C. Petition

In the current petition, petitioner contends that: (1) he was denied “due process” as the result of several trial court rulings; (2) trial counsel provided ineffective assistance due to a conflict of interest; (3) his conviction was secured through the introduction of false evidence; and (4) the trial court wrongfully denied his motion to vacate, and the Appellate Division made an erroneous ruling in denying his appeal. See Pet. at 4–5.

III. DISCUSSIONA. Standard of Review

Federal habeas corpus petitions are governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which sets forth a rigorous standard of review with regard to petitions filed by state prisoners. See Williams v. Taylor, 529 U.S. 362, 402–03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under AEDPA, a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication of the claim (1) was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) was based on an unreasonabledetermination of the facts in light of the evidence presented in the state court proceeding. See28 U.S.C. § 2254(d)(1)-(2); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).

Though the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are analyzed independently, both limit the source of the “clearly established law” to the jurisprudence of the Supreme Court. Williams, 529 U.S. at 404–05, 412, 120 S.Ct. 1495. The Supreme Court has noted that a state court decision will be “contrary to” established Supreme Court precedent if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or if a 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. Id. at 405–06, 120 S.Ct. 1495. With respect to the “unreasonable application” clause, a federal court may grant a petitioner's writ of habeas corpus “if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to...