Tillery v. Lempke

• Decision Date: 29 November 2011
• Docket Number: 9:10-CV-1298 (GTS)
• Parties: CARLTON TILLERY, Petitioner, v. JOHN B. LEMPKE, Respondent.
• Court: U.S. District Court — Northern District of New York

CARLTON TILLERY, Petitioner,

v.JOHN B. LEMPKE, Respondent.

9:10-CV-1298 (GTS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: November 29, 2011

APPEARANCES:

CARLTON TILLERY, 08-A-1620

Petitioner, Pro Se

HON. ERIC T. SCHNEIDERMAN

Attorney General for the State of New York

Counsel for Respondent

OF COUNSEL:

PRISCILLA I. STEWARD, ESQ.

Assistant Attorney General

HON. GLENN T. SUDDABY, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this habeas proceeding filed by Carlton Tillery("Petitioner") against John B. Lempke("Respondent") pursuant to 28 U.S.C. § 2254, is Petitioner's Petition.(Dkt. No. 1[hereinafter "Petition"].)For the reasons set forth below, the Petition is denied and dismissed in its entirety.

I.RELEVANT BACKGROUND

A.Summary of Petition

Petitioner filed his Petition on October 29, 2010.Generally, Petitioner challenges his conviction, in Albany County Court on March 27, 2008(following a jury trial), of one count of criminal possession of a weapon in the second degree, for which he was sentenced to a determinate term of nine years imprisonment.(Petitionat ¶¶ 1-7.)In support of his request for federal habeas intervention, Petitioner asserts several claims.(See generally Petition.)More specifically, he claims that (1) his conviction was based upon legally insufficient evidence (id., Ground A),¹(2) recent Supreme Court precedent renders his conviction unconstitutional (id., Ground B), (3) the imposed sentence amounts to a violation of the Eighth Amendment's ban on cruel and unusual punishment (id., Ground C), (4)he was deprived of his right to a fair trial by prosecutorial misconduct (id., Ground D), (5) his trial counsel rendered ineffective assistance by failing to object to the prosecution's "egregious summation"(id., Ground E), and (6) his statements to the police were admitted against him at trial in violation of his Fourth and Sixth Amendment rights.(id., Grounds F, G.)

B.State Court Proceedings

On September 12, 2007, an Albany County Grand Jury returned an Indictment against Petitioner.(Dkt. No. 9-1at 42[hereinafter "Indictment"].)In that Indictment, Petitioner was charged with second degree criminal possession of a weapon, in violation of § 265.03(3) of the New York Penal Law(hereinafter "Penal Law.")(Indictment, Count One.)

Petitioner was tried on the foregoing charge before a jury in Albany County Court.County Court JudgeStephen W. Herrick presided over the trial.At the conclusion of the trial, Petitioner was found guilty of the charge.The New York State Supreme Court, Appellate Division, Third Department summarized the burden of proof on the District Attorney at the trial, together with the evidence presented by the prosecutor in support of the weapons possession charge, as follows:

The People were required to prove that [Petitioner] possessed a loaded firearm in a place that was not his home or business (seePenal Law § 265.03 [3]).A "firearm" includes "a shotgun having one or more barrels less than eighteen inches in length"(Penal Law § 265.00[3]), and the term "loaded firearm" includes "any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm"(Penal Law § 265.00[15]).There was evidence at trial that the shotgun barrel had been sawed off to less than 18 inches, the gun was operable, the ammunition in [Petitioner's] pocket could be used in that weapon and the police saw [Petitioner] possessing the toy alligator in which the weapon had been placed.Viewed most favorably to the People, the evidence is legally sufficient since there was a valid line of reasoning and permissible inferences for a rational person to arrive at the conclusion reached by the jury.

New York v. Tillery, 60 A.D.3d 1203, 1205-06(N.Y. App. Div., 3d Dept.2009), leave denied, New York v. Tillery, 12 N.Y.3d 860(N.Y.2009).

On March 5, 2007, Petitioner was sentenced to the nine year prison term referenced above.(Dkt. No. 10, Attach. 2at 178-205[Transcript of Sentencing of Carlton Tillery(3/5/07)]) at 25.)Petitioner's conviction and sentence were unanimously affirmed by the Third Department in its decision quoted above.SeeTillery, 60 A.D.3d at 1203-06.

C.Proceedings in this Court

Petitioner commenced this action by filing a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this District on October 28, 2010.(Petition.)On March 18, 2011, the Office of the Attorney General of the State of New York, acting on Respondent'sbehalf, filed an answer in opposition to the Petition, together with various state court records relating to his conviction.(Dkt. Nos. 7-10.)In opposing the Petition, Respondent argues that Petitioner's claims must be denied because they were either denied by the state courts on procedural grounds or are substantively without merit.(Dkt. No. 8, Respondent's Memorandum of Law in Opposition to Petition [hereinafter "Resp.Mem."])On April 25, 2011, Petitioner filed a Traverse in further support of his habeas application.(Dkt. No. 12[hereinafter "Traverse"].)This matter is currently before this Court for disposition.

II.ANALYSIS

A.Claim Barred by Independent-and-Adequate-State-Ground Doctrine

In his second ground for relief, Petitioner claims that his conviction is "null and void" in light of recent Supreme Court precedent that addresses the scope of the Second Amendment to the United States Constitution.(Petition, Ground B;Memorandum of Law in Support of Petition [Dkt. No. 1, Attach.1 (hereinafter "Supporting Mem.")]at 1-10;Traverseat 5-7.)More specifically, he claims that the weapons possession statute of which he was found guilty of violating "is unconstitutional both on its face and as applied" to Petitioner.(Petitionat ¶ 13.)

Respondent argues that Petitioner has procedurally defaulted on this claim because the County Court found that Petitioner had improperly failed to raise such claim in his direct appeal.(Resp. Mem.at 29-33.)

It is "well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.'"Cone v. Bell, 129 S. Ct. 1769, 1780(2009)(quotingColeman v. Thompson, 501 U.S. 722, 720[1991]).

In addressing Petitioner's claim that his conviction violated the Second Amendment's pronouncement regarding the right of United States citizens to keep and bear arms, the County Court cited New York's Criminal Procedure Law [hereinafter "NY CPL"], § 440.10[2][c]² and concluded that Petitioner had "failed to demonstrate justification for failing to raise the issue[] on appeal and may not use the present motion as a substitute for a direct appeal."(Dkt. No. 9, Attach. 12 [Decision and Order of Judge Herrick(7/31/09)] at 3.)The denial of a claim in light of § 440.10(2)(c) is a procedural denial of such a claim.SeeArtuz v. Bennett, 531 U.S. 4, 10-11(2000);Ramirez, 280 F.3d at 89;Kent v. Smith, 05-CV-9785, 2007 WL 2907350, at *8(N.D.N.Y.Oct. 4, 2007)(Kahn, J.);Veras v. Strack, 98-CV-7610, 2000 WL 8249, at *1(S.D.N.Y.Jan. 4, 2000)(holding that the denial of a claim under NY CPL § 440.10[2][c] is an adequate and independent state procedural ground barring federal habeas review of such a claim)(citingDorsey v. Irvin, 56 F.3d 425[2d Cir.1995]).Therefore, the County Court clearly denied Petitioner's constitutional claim on procedural grounds.

However, to constitute an "adequate and independent" state ground sufficient to preclude federal habeas review of a claim, the federal court must also find that the state procedural rule is "firmly established and regularly followed" by the state courts, and that application of the rulewould not be "exorbitant."Clark v. Perez, 510 F.3d 382, 391(2d Cir.2008);Murden v. Artuz, 497 F.3d 178, 192(2d Cir.2007);Garvey v. Duncan, 485 F.3d 709, 713-14(2d Cir.2007).The procedural denial of claims under NY CPL § 440.10(2)(c) is both firmly established and regularly followed in New York State courts.SeeLouis v. Fischer, 04-CV-2887, 2007 WL 4198255, at *20-21(E.D.N.Y.June 25, 2007);Smith v. Artus, 03-CV-6982, 2004 WL 789769, at *16(S.D.N.Y.Apr. 14, 2004)("[F]ailure to comply with CPL § 440.10(2)(c) creates a procedural bar to federal habeas review" that is "both an 'independent' and an "adequate" state ground for its decision.").Furthermore, nothing before this Court suggests that the facts or circumstances related to this action presents an exceptional case such that this Court's application of the above-described procedural bar as to these claims would be exorbitant or otherwise inappropriate.³SeeClark, 510 F.3d at 391;Cotto v. Herbert, 331 F.3d 217, 240(2d Cir.2003)(discussing "guideposts"federal courts should consider in ascertaining whether application of the procedural bar is appropriate);see, e.g., Robinson v. Perlman, 02-CV-8709, 2005 WL 6274288, at *6-7(S.D.N.Y.Apr. 20, 2005)(application of adequate and independent state procedural doctrine not "exorbitant" where party failed to preserve claim for appellate review);Smith, 2004 WL 789769, at *16("[F]ederal habeas courts have routinely held that the failure to comply with CPL § 440.10[2][c] creates a procedural bar to federal habeas review.").⁴Petitioner has therefore procedurally defaulted on his second ground for relief.

Federal courts may consider the merits of a procedurally defaulted claim only where the petitioner can establish both cause for the procedural default and resulting prejudice, or, alternatively, that a fundamental miscarriage of justice would occur absent federal court review of the claim.SeeDixon v. Miller, 293 F.3d 74, 80-81(2d Cir.2002)(quotingColeman, 501 U.S. at 750);see alsoSt. Helen v. Senkowski, 374 F.3d 181, 184(2d Cir.2004)(holding that, "[i...