Opinion
98-CV-6339 (CJS)
October 4, 2002
For Petitioner: Gino Greco, pro se, Comstock, New York.
For Respondent: Donna A. Milling, Esq., Assistant District Attorney Buffalo, New York.
DECISION AND ORDER
INTRODUCTION
Petitioner Gino Greco, proceeding pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his state court convictions for sodomy in the first degree, sexual abuse in the first degree, and criminal possession of a weapon in the third degree (N.Y. Penal Law §§ 130.50(1), 130.65(1), and 265.02(1)). For the reasons that follow, petitioner's application is denied and dismissed.
HABEAS CORPUS STANDARD
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996,("AEDPA"), a federal court can grant habeas corpus relief only if the State court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
BACKGROUND
Between November 14, 1989 and April 21, 1990, in the City of Buffalo, several females including a young girl were sexually assaulted. On November 14, 1989, the young girl, Cherita M., then 12 years of age, was alone at her godmother's house when a man entered the house, put a knife to her throat, and forced her to go with him to the backyard. She described the man as a white male in his 30's, 5'4" or 5'5" tall, with short hair and a mustache, wearing a dark blue hooded sweat jacket. The man forced her to perform oral sex, and told her to swallow his ejaculate. During the assault, the man fondled her breasts and said things such as, "Do you like my cock?," and, "Would you like to get fucked?" After he ejaculated, the man told her, "You are really good." The man then asked her various questions about what she intended to do after he left.
Eventually, the man fled on foot. On December 10, 1989, Lynette S. was attempting to hitch hike when a man approached her on foot and told her that he would give her a ride. She described the man as "about 26 or 27" years old, approximately 5'6" or 5'7" tall, with a light brown thick mustache, wearing a dark blue hooded sweatshirt and dark tan jeans. The man led her into a driveway, then put a knife to her throat, and asked her how much money she had. The man then forced her to perform oral sex three times, told her to tell him that she "liked it," and told her that she "did it real good."
During the assault the man fondled her breasts. The man then fled on foot. On December 13, 1989, Anne H. was getting into her car when a man got in on the passenger side and said, "I just need a ride." She described the man as appearing to be Italian, in his 20's, approximately 5'8" to 5'9" tall, with a thin mustache, wearing a hooded sweatshirt and green army pants. The man smelled of alcohol and cigarettes.
The man then forced her to drive, and told her not to look at him. The man put a sharp instrument to her neck, then forced her to sit on the floor on the passenger side of the car. He then asked her if she had any money, then took $40 from her. The attacker then forced her to perform oral sex twice, while he asked her if she "liked it." He also fondled her breasts. He then asked her questions about what she was going to do after he left, and asked her if she wanted him to "fuck" her. The man then fled on foot. On December 15, 1989, Danielle G. was getting into her car when a man approached her, said, "All I need is a ride," grabbed her throat, forced her to sit on the floor of the passenger side of the car and told her not to look at him. She described the man as being in his "30's, 40's maybe," with "brownish blond" hair and a scratchy voice. The man smoked cigarettes and smelled of alcohol. The man forced her to perform oral sex and told her that she would "like it." Afterward, he said, "you liked it, didn't you?" The man also asked her if she wanted to have intercourse. The man then fled on foot. On January 7, 1990, Karen S. went into a Tops supermarket for a few minutes. She returned to her car and was driving away when a man climbed to the front of the car from the back of her station wagon. She described the man as approximately 5'7" or 5'8" tall, in his late twenties, wearing a hooded sweatshirt pulled tightly around his face. The man put a knife to her throat and said, "I just want a ride." She told the man she was pregnant and begged him not to hurt her, and he again said, "I just want a ride." He also asked her if she had any money. The man called her "girl." Eventually he made her stop the car, and get down onto the floor of the passenger's side, and told her, "Don't look at me." The man then drove the car to a location and stopped. He forced her to perform oral sex, and told her to swallow his ejaculate and act like she "liked it." He also fondled her breasts, and asked her if she wanted him to "fuck her." The man smoked Winston cigarettes, and she noted that he wore Fruit of the Loom underwear and a gold-tone wristwatch. On March 8, 1990, Kelly B. was parking her car, when a man opened her door, put a knife to her throat, and said, "I need a ride." The man called her "girl," told her not to look at him, and made her get on the floor on the passenger's side. She described the man as approximately 5'10" tall, "Italian looking," with short dark brown hair and a mustache. She could not remember what clothes he wore. He then drove to a location and forced her to perform oral sex, telling her to swallow his ejaculate. During the assault, he fondled her breasts, and asked her if she "liked it" and if she wanted him to "fuck" her. The attacker then fled on foot. On April 21, 1990, Kimberly K. was parking her car when a man opened her car door, put a knife to her throat, and told her, "I just want a ride." She described the man as appearing to be in his 20's, approximately 5'10" tall, Italian or Puerto Rican, with dark brown hair and a mustache. He wore a white windbreaker jacket smoke cigarettes and smelled of alcohol. He forced her to sit on the floor of the passenger side of the vehicle and told her to keep her face down and not look up. He also asked her if she had any money. He told her to perform oral sex, but she refused and hit him. He grabbed her and forced her to perform oral sex, but she continued to fight. He then put his knife to her eye and threatened to stab her eye. She continued to resist and the attacker eventually ejaculated on her clothing. He exited the car but left behind a white comb with a "fat handle" and a royal blue ski mask. He returned a few moments later and took the comb and ski mask.
Petitioner Gino Greco became a suspect shortly after the last of these assaults occurred. Lieutenant Paul Reinig, who at the time was in charge of the Sex Offense Squad of the Buffalo Police Department, indicated that petitioner, along with ten or twelve other men living in the area, had been arrested for sodomy and generally fit the description of the attacker. At that time, petitioner was 29 years old, 5'6" tall, with brown hair and a mustache. Lieutenant Reinig further recognized petitioner as having been a suspect in a series of robberies in North Buffalo where victims were approached in their cars by a man wearing a hood. Moreover, one of the sexual assaults began in the same Tops Supermarket parking lot where petitioner had previously committed a robbery. Petitioner had also been paroled from prison in October 1989, shortly before the sexual assaults began, after serving five years for two counts of attempted robbery in the first degree.
Members of the Buffalo Police Department interviewed petitioner on June 19, 1990. After being given his Miranda warnings, petitioner said, "I think I know what this is about. My parole officer[s] . . . told me when they arrested me I would never do anything to a woman [sic]," and he stated, "I would never do anything to a woman." During the interview, petitioner was made aware of the specific dates of the assaults. Petitioner indicated that he did not drive, and relied on the bus for transportation. Petitioner indicated that he smoked Marlboro cigarettes and used only matches, not a lighter. When asked to described his work clothing, petitioner described various jackets, but did not mention owning a blue hooded sweatshirt, and denied owning a white windbreaker. He further denied owning a white comb. When the interviewing officers asked petitioner if they could take his photograph, he said yes, but only if he could shave first. After shaving and consulting his attorney, however, he declined to be photographed.
That same day, June 19, 1990, the People applied for a search warrant for 449 Englewood, Apartment 1, Town of Tonawanda, the apartment in which petitioner had been staying with his sister. An assistant district attorney executed an affidavit in support of the search warrant application which indicated, inter alia, the following: 1) the descriptions given by the victims generally described petitioner, who was 29 years old, 5'6" tall, with brown hair and a mustache; 2) petitioner had an extensive criminal history, including convictions for robbery in the second degree and attempted robbery in the first degree; 3) petitioner had been arrested for consensual sodomy with a prostitute, and had pled guilty to a reduced charge of trespassing; 3) in committing the crimes of attempted robbery to which he pled guilty in 1984, petitioner had used a weapon to force his victims into their cars; 3) petitioner had been released from prison on October 10, 1989, shortly before the series of sexual assaults began; 4) petitioner had been in jail, on a charge of unauthorized use of a motor vehicle, between March 24, 1990 and April 21, 1990; 5) the day plaintiff was released from jail, April 21, 1990, was the day the last the last sexual assault occurred; 6) on May 18, 1990, plaintiff pled guilty to unauthorized use of a motor vehicle, and was sentenced to six months in jail, and no similar assaults occurred after that date; 7) when petitioner was arrested for unauthorized used of a motor vehicle, he was wearing a gold-tone wristwatch and possessed a white comb with a "fat handle"; 8) police showed a photograph of petitioner's comb to victim Karen S., who indicated that it looked like her assailant's comb; 9) two of the victims were shown a photo array containing a photo of petitioner, whom they failed to identify, although in the photo, petitioner's eyes were closed, and the victims had only a limited opportunity to view petitioner's face during the assault; 10) petitioner's employer indicated that petitioner "almost always" wore a dark blue hooded sweatshirt, and sometimes also wore dark tan pants, a blue jacket, a green army jacket, or a white windbreaker jacket; 11) petitioner's employer indicated that petitioner constantly smoked cigarettes and had a drinking problem; 12) petitioner's employer indicated that, in connection with his employment, petitioner carried a sharp utility knife; 13) petitioner's employer indicated that, after work, petitioner would go to bars in the downtown Allen Street area of Buffalo, which is where three of the attack victims were first accosted; 14) petitioner's employer indicated that around the time of the assault against Lynette S., petitioner had been working nearby; 15) petitioner's employer indicated that his employees frequented a restaurant called Amy's Place, which is where Cherita M. had been immediately prior to being attacked; 16) petitioner's employer indicated that petitioner often wore a blue ski mask; 17) one of the attacks began in the same Tops super market parking lot where petitioner had previously committed a robbery; 18) several of the attacks occurred within close proximity of the apartment in which petitioner was staying with his sister; 19) the attacker left a Winston cigarette butt in victim Anne H.'s car, and petitioner left a Winston cigarette butt in the office of his parole officer; 20) forensic testing on both cigarette butts indicated that both contained fluid from a person with B-type blood; and 21) only 8 percent of the white male population has B-type blood. Based upon these averments, the Honorable John V. Rogowski, Erie County Court Judge, signed a search warrant. During the search, police seized various items belonging to petitioner, including a blue hooded sweatshirt and Fruit of the Loom underwear.
In fact, when visiting his parole officer, petitioner left on Winston cigarette butt in a hallway, and one in a rest room. The parole officer, who had observed petitioner smoking the cigarettes, retrieved the cigarette butts and provided them to the police.
Subsequently, the People applied for an order directing petitioner to provide a blood sample. In support of that application, the People relied primarily upon the same facts that were alleged in the search warrant application. On October 12, 1990, the Honorable Michael L. D'Amico, Erie County Court Judge, conducted a probable cause hearing, which he then adjourned to allow the People to submit additional evidence, including an affidavit from Lieutenant Reinig, containing the facts set forth above which described the process by which the police settled upon petitioner as the suspect. The People also submitted an affidavit from John Simich, a forensic chemist employed by the Erie County Central Police Services Laboratory, who indicated that DNA analysis could be performed on four semen samples obtained from the victims. On October 15, 1990, Judge D'Amico granted the People's application.
On August 22, 1991, the People requested an order directing petitioner to appear in a line-up. In support of that application, the People relied upon the facts set forth in the applications for the search warrant and blood sample, and, in addition, they indicated that forensic testing on petitioner's blood revealed a DNA "match" with semen left at the scene of three of the assaults. Moreover, testing confirmed that petitioner has B-type blood, as did the perpetrator in four of the assaults. On August 30, 1991, the Honorable Theodore S. Kasler, Erie County Court Judge, granted the application. On September 12, 1991, the Buffalo Police Department conducted a two-phase lineup. During the first phase of the lineup, the victims were asked to identify their attacker by sight. At this phase, two of the women, Kimberly K. and Anne H., identified petitioner.
During the Wade hearing, Kimberly K. testified that, over the course of approximately 40 minutes, she had several opportunities to clearly see petitioner's face. She indicated that, at one point in particular, she had a clear view of petitioner's face for approximately 40 seconds while he choked her. Anne H. also indicated that she had a clear view of petitioner's face at one point during the attack.
During the second phase, the women were asked to identify their attacker by voice. At this phase, three of the women, Karen S., Anne H., and Kelly B., identified petitioner. In all, four of the women identified petitioner as their attacker.
On October 3, 1991, an Erie County Grand Jury indicted petitioner on charges arising from all six assaults. The indictment charged six counts of first degree sodomy, six counts of third degree criminal possession of a weapon, and two counts of third degree robbery (Indictment No. 90-0122-001). At that time, the People announced their readiness for trial. A few days later, petitioner mailed a letter to the District Attorney requesting to testify before the Grand Jury, however, the People treated the request as moot, since he had already been indicted. On November 21, 1991, the People obtained a superseding indictment before the same Grand Jury, without presenting any additional proof. That indictment, No. 90-0122-SO1, contained the same charges as the earlier indictment, but added a charge of first degree burglary and increased the third-degree robbery charges to first-degree robbery. Despite his earlier request, petitioner was not allowed to testify before the Grand Jury in connection with the superseding indictment.
The case was assigned to the Honorable Timothy J. Drury, Erie County Court Judge. Petitioner was provided with assigned counsel. At his arraignment on the superseding indictment, petitioner moved to dismiss the indictment on the ground that he had not been allowed to testify before the Grand Jury. Judge Drury reserved decision. On November 25, 1991, petitioner filed an omnibus motion, requesting, inter alia, Wade and Huntley hearings, suppression of his blood and the items seized from his sister's apartment, and severance. On December 23, 1991, Judge Drury began the Wade and Huntley hearings, which he then adjourned until January 17, 1992. On January 17, 1992, Judge Drury concluded the taking of evidence in the Wade and Huntley hearings, indicated that he would issue a written decision, scheduled a probable cause hearing on February 14, 1992, and scheduled a Frye hearing for February 18, 1992.
On February 4, 1992, Judge Drury, in a written decision and order, dismissed that portion of Indictment No. 90-0122-S01 dealing with complainant Karen S. (Counts 11-13), citing "a failure of proof on the issue of identification." The People re-presented those charges to the Grand Jury, and this time, offered petitioner the opportunity to testify, which he declined. On March 4, 1992, the Grand Jury returned a new indictment, No. 92-0445-001, which dealt solely with the crimes against Karen S. Subsequently, Judge Drury denied petitioner's motion to dismiss Indictment No. 90-0122-SO1, the superseding indictment pertaining to the other five women, finding, on the basis of petitioner's refusal to testify before the later Grand Jury, that his earlier request to appear before the Grand Jury was not genuine.
On February 18, 1992, Judge Drury began the Frye hearing to determine the admissibility of DNA evidence. At the hearing, the People's expert witness, F.B.I. Special Agent John L. Quill, indicated that he had conducted DNA testing which revealed that the DNA in petitioner's blood matched the DNA contained in semen taken from clothing worn by Cherita M., Lynette S., and Kimberly K. Agent Quill indicated that he could not analyze the a semen specimen taken from Danielle G.'s clothing, due to degradation of the specimen. Judge Drury then continued the Frye hearing to April 1, 1992 at 2 p.m. Petitioner, who was in custody, was brought to the courthouse on that day. However, due to a mistake in filling out the order to produce petitioner, he was brought in the morning. For reasons that are unclear, officers from the correctional facility returned petitioner to the prison, and did not bring him back in the afternoon. The court then adjourned the hearing until April 16, 1992. On that date, Dr. Michael D. Garrick, Professor of Biochemistry at SUNY Buffalo, testified on behalf of the People and indicated that the DNA testing procedures used by the FBI were generally accepted in the scientific community. However, Dr. Garrick indicated that there was some disagreement as to the methods for calculating the probability that other persons might have similar DNA. He noted that certain members of the scientific community questioned whether or not certain sub-populations of the caucasian community, Italian-Americans, for example, might be more likely to have the same type of genetic structure. Petitioner's counsel then requested the opportunity to submit additional materials to the court, and, possibly, to retain an expert witness, and indicated that he would notify the court by May 7, 1992, whether or not he intended to have an expert testify.
On May 7, 1992, petitioner's counsel indicated that he had not managed to retain an expert witness. Also as of that date, the Court and counsel had copies of a May 1992 report by the National Academy of Science, which discussed the reliability of DNA testing. Judge Drury indicated that he would reserve decision on whether or not to admit the report into evidence. At the close of the hearing on May 7th, Judge Drury directed petitioner's counsel to submit a memo of law regarding the Frye hearing issues by May 29, 1992, and directed the assistant district attorney to submit her memo of law by June 12, 1992. Petitioner did not file his memo until June 8, 1992, and the People did not file their response until August 4, 1992.
Judge Drury issued his decision on the Frye hearing on October 27, 1992, granting petitioner's motion to suppress. Judge Drury ruled that, although the theory behind DNA testing was generally accepted by the scientific community, some experts disagreed over the possibility of genetic sub-groupings among ethnic populations. On that basis, he ruled that the People could not use evidence of DNA testing. On November 4, 1992, Judge Drury issued a decision and order denying petitioner's suppression motions, finding that there had been probable cause for the search warrant, the blood-sample order, and the line-up order.
On November 24, 1992, the parties appeared again before Judge Drury. Incidentally, at that time, Judge Drury indicated on the record: "After a period of time that I needed to decide the various motions I've decided two of the three outstanding ones," referring to the Frye hearing and suppression motions. (Transcript of 11/24/92 appearance, p. 2). He further stated, regarding the issues in the Frye hearing, "it took time for me to get into the area," referring to DNA testing. (Id., p. 8). Earlier, he had indicated that it was the first time he had conducted a Frye hearing. (Transcript of Frye hearing, 4/16/92, p. 4) At that time, and for reasons that are unclear, Judge Drury also indicated that he had, sua sponte, reconsidered one of his earlier rulings, and was going to allow the People an opportunity to demonstrate, for the record, that the victims had an independent basis for identifying the petitioner apart from the line-up. He then scheduled a hearing on that issue for November 27, 1992.
During the original Wade hearing, the People had indicated that they did not believe it was necessary to present evidence of independent basis at that time, as long as they would have the opportunity to do so later, in the event that Judge Drury found the lineup to be unduly suggestive. (Transcript of 1/17/92 appearance, pp. 63-64).
On December 2, 1992, the parties again appeared before Judge Drury, with petitioner represented by new counsel, who had been assigned at petitioner's request. Because petitioner's new counsel not yet received the file from petitioner's former counsel, Judge Drury adjourned the proceedings until December 21, 1992. On that day, Judge Drury scheduled a hearing on the motion to dismiss the indictment for January 15, 1993. On the 15th, petitioner's counsel requested an additional two weeks to submit a brief, which was granted. On March 3, 1993, the parties again appeared before Judge Drury, at which time Judge Drury indicated that he wanted the parties to come back on March 17, 1993. At the March 3rd appearance, the People again noted that they were ready for trial. The parties appeared again before Judge Drury on March 17, 1993. At the close of that appearance, Judge Drury indicated that he would issue a written decision, but did not indicate when: "I'll get to this as soon as I can. I don't have another date for you. I'll deal with it as I — the best can do." (Transcript of 3/17/93 appearance, p. 9).
On or about May 18, 1993, the People filed a motion requesting Judge Drury to reconsider his ruling regarding the DNA evidence, and re-open the Frye hearing. In support of that application, the People indicated, inter alia, that Judge Drury had erroneously relied upon the National Research Council's report on DNA testing. In that regard, the People noted that, in a hearing in a different but similar case before Judge Drury, the co-author of that report had testified that the court's interpretation of the report was erroneous, and that Judge Drury had subsequently allowed the use of the DNA testing evidence. The People further noted that, since the Frye hearing in petitioner's case, the scientific community had issued numerous writings indicating that the statistical analysis used by the FBI to calculate probabilities had become generally accepted.
On May 25, 1993, the parties appeared before Judge Drury to continue the Wade hearing, which he had sua sponte reopened. At the close of the hearing, Judge Drury again ruled that the identification procedures used were not unduly suggestive. He then set a date of June 23, 1993, for argument of the People's motion for reconsideration and for the reopening of the Frye hearing, indicating that June 23rd was the earliest possible date. On June 23, 1993, the parties appeared before Judge Drury, who agreed that, in fact, he had misinterpreted the National Research Council's report on DNA testing. (Transcript of 6/23/93 appearance, p. 4). At the close of arguments that day, Judge Drury gave the parties an additional two weeks to submit legal authority, and set an adjourned date of July 8, 1993. On July 8th, Judge Drury heard further argument, at the conclusion of which he indicated that he was reserving decision on the People's motion to reconsider, and would render a decision as soon as possible. On August 19, 1993, Judge Drury, apparently having decided to allow additional testimony, adjourned the matter until September 2, 1993, to determine whether or not a witness was available to testify at the re-opened of the Frye hearing. At that time, Judge Drury stated: "I'm gonna be on vacation for a week. The reason this has been somewhat delayed is I've been on vacation for two other weeks this summer, and — and I naturally had to do some research in regard to the motion. . . . [T]his case has been — been delayed. It's had some length to it, goodly length, and that's — I think it's mainly because of these hearings." (Transcript, pp. 5-6). On September 2nd, Judge Drury indicated that he would schedule the taking of additional proof at a later date.
On September 9th, the court heard additional testimony from the People's witness, Dr. Garrick, who indicated that since he had testified last, the scientific community had come to accept a method for dealing with probability calculations involving population sub-groups, known as the "ceiling principle." Dr. Garrick testified that the consensus in the scientific community came about largely after the publication of the National Research Council's report on April 27, 1992. After hearing Dr. Garrick's testimony, Judge Drury indicated that he would likely grant the people's motion to reopen the Frye hearing, although he indicated that he wanted to issue a written decision. As to the progress of the case, Judge Drury noted, "[W]e're moving along, I think, even though at a slow pace." (Transcript of 9/9/93 appearance, p. 38). The people again stated that they were ready for trial. (Id., p. 39). On September 24, 1993, Judge Drury indicated that, because of the schedules of the court, the attorneys, and the People's witness, the earliest date that the re-opened Frye hearing could continue would be December 1, 1993. Judge Drury also scheduled an appearance for October 1, 1993, to discuss the issue of severance.
On November 12, 1993, the parties appeared in court, at which time the petitioner withdrew his request for severance, and indicated that he did not oppose the consolidation of the two indictments, 90-0122-S01 and 92-0445-001. At that time, Judge Drury stated, "Obviously we can't try this in December, because we still have issues outstanding," and he indicated that, because he already had several trials scheduled, the earliest possible trial date would be April 11, 1994. (Transcript of 01/12/93 appearance, p. 5). Petitioner's counsel stated, "April 11th is fine, Judge." (Id.). The people again indicated that they were ready for trial.
On December 1, 1993, the Frye hearing continued. At the close of proof that day, Judge Drury indicated that he wanted to obtain and review the transcript of the entire hearing, so he adjourned the matter again until January 19, 1994, noting, "That's the soonest we can do it, because I know how filled up the schedule is." (Transcript of 12/1/93 appearance, p. 52). The People again indicated they were ready for trial.
There is no indication in the record that the parties appeared before the Court on January 19th. On February 23, 1994, Judge Drury issued his Frye ruling, reversing his earlier decision, and finding, as a threshold matter, that the People's DNA testing evidence would be admissible at trial. At a subsequent appearance, Judge Drury stated the reason why he re-opened the Frye hearing, noting, "[t]he only reason it was reopened, [is] because . . . the knowledge in this area had expanded." (Transcript of 3/24/94 appearance, p. 5)
On March 1, 1994, the parties appeared before Judge Drury, for the purpose of considering, as Judge Drury described it, petitioner's "late alibi notice." As to that, although the People had made an alibi demand in December of 1991, petitioner had never submitted an alibi notice. Judge Drury indicated that he was inclined to allow petitioner to present the late alibi evidence, although he indicated that he wanted to see additional proof before deciding. At that time, petitioner's counsel also indicated that he might be making additional motions, and he asked for an additional week in which to determine if those motions were necessary. Due to the court's schedule, the matter was re-calendared for March 24, 1994. Petitioner's counsel indicated that the two-week adjournment would be "fine." On March 24, 1994, the parties again appeared before Judge Drury. At that time, the parties indicated that, other than a Sandoval motion, there were no remaining applications and the matter was set down for trial on April 11, 1994.
On or about April 4, 1994, one week before the scheduled start of the trial, petitioner filed a pro se application to dismiss the indictments pursuant to New York Criminal Procedure Law ("CPL") § 30.30. On or about April 11, the scheduled start of the trial, petitioner's counsel filed papers joining in the motion. Judge Drury denied the motions. In that regard, Judge Drury reviewed the entire history of the case, and found that only three months and twenty-one days of delay were chargeable to the People. Specifically, he found, as to the charges that were added in the superseding indictment, a period chargeable to the People of 2 months and 1 day of delay (October 11, 1991 — December 12, 1991), representing the time between the People announced readiness on the first indictment, and the date they announced readiness on the new charges in the superseding indictment. Next, he found 20 days (November 22, 1991 — December 12, 1991) chargeable to the People, for the period between the date petitioner was arraigned on the superseding indictment and the date the People announced readiness. Finally, he found one month of delay (February 4, 1992 — March 4, 1992) chargeable to the people for the period between the date the 3 counts of the original indictment, dealing with Karen S., were dismissed and the date petitioner was arraigned on the new indictment, No. 92-0445-001. Judge Drury found that the rest of the delay was attributable to pre-trial motions, and thus were not considered chargeable to the People under CPL § 30.30(4)(a). Judge Drury also found that petitioner's constitutional right to a speedy trial had not been violated.
Petitioner contends that the People actually did not announce trial readiness on the superseding indictment until December 19th. Petitioner appears to be correct, since the People's notice of readiness was not sworn to until December 19, 1991. This minor and apparently inadvertent error, which went unnoticed by Judge Drury, Petitioner, his counsel, and the prosecutor, does nothing to alter this Court's determination that petitioner's speedy trial rights were not violated. It is unclear why Judge Drury counted the time between November 22 and December 12 twice.
The trial commenced on April 12, 1994, with jury selection. During the People's case, Anne H. identified petitioner in court as the man who sodomized her. (Trial Transcript, pp. 193-94). She indicated that she also felt confident in her ability to identify petitioner's voice, "because he talked quite a bit." (Id., p. 217) Karen S. also testified regarding her ability to identify petitioner's voice, noting, that, when she heard his voice during the line-up, "it was just like the night it happened. It just — the voice hit me, and I knew it was him." (Id., p. 287) Karen S. testified that petitioner was in her car four about an hour, and that he talked for about 80% of that time. (Id., p. 296) She also testified that petitioner smoked a cigarette in her presence, and wore a hooded sweatshirt and Fruit of the Loom Underwear. Kelly B., who identified petitioner's face and voice, testified that petitioner was in her car about a half hour, and that he talked "pretty much the whole time." (Id., pp. 308, 313) Similar to Karen S., Kelly B. testified that when she heard petitioner's voice, she "knew that it was him." (Id., p. 325) Kelly B. added that petitioner "talked pretty much the whole time." (Id., p. 308) Kimberly K. at trial also identified petitioner by voice and by his face.
One of petitioner's co-workers, John Tinty, testified that petitioner owned a white windbreaker jacket, and that he had heard petitioner say on one occasion, "I was out with some broad last night and she sucked my cock till my head exploded." (Id., p. 580) The People also produced Kenneth Marks, who testified regarding conversations he had with petitioner while they both were incarcerated at Wende Correctional Facility, subsequent to the attacks. Marks testified that, during the summer and fall of 1990, petitioner had admitted committing a number of sodomies against women in Buffalo.(Id., p. 800) The People also called John L. Quill, an FBI Agent assigned to the FBI's DNA Unit, who testified that DNA in petitioner's blood matched the DNA in the semen stains on the clothing of Cherita M., Lynette S., and Kimberly K., and that the chance of an unrelated individual at random in the population having the same match would be one in 233 for Cherita, one in 304 for Lynette, and one in 304 for Kimberly.
Petitioner did not testify at trial. Instead, petitioner presented alibi witnesses for the dates of the attacks against Cherita M. and Karen S. One of petitioner's friends, Wally Gregoretti, testified that petitioner was with him on the night Cherita M. was attacked, while other witnesses testified that petitioner was at a family birthday party on the night Karen S. was attacked. With regard to the first incident, Gregoretti testified that he and petitioner had gone out to dinner on November 14, 1989, which was the day before petitioner's birthday. However, petitioner's sister indicated that Gregoretti and petitioner had gone to dinner on the actual day of petitioner's birthday, November 15th, the day after Karen S. was assaulted, and that she remembered because she had planned to surprise petitioner by taking him to dinner, and was upset when petitioner had gone out with Gregoretti instead. (Trial Transcript, pp. 774-75) Petitioner also had several witnesses testify that he was at a birthday party on the evening of January 7, 1990, when Karen S. was attacked. These witnesses testified that the family party had occurred on a Sunday, and that one of the attendees, Alan Kaufman, had arrived late for the party. Kaufman testified that he had been late because he had been watching a Buffalo Bills playoff game on television. (Id., pp. 742-43) However, the People presented testimony from the Director of Security for the Buffalo Bills, that on the weekend of January 6th and 7th, 1990, the Bills played a playoff football game on Saturday January 6th, not Sunday January 7th. (984) The jury deliberated over the course of two days, and then, on April 30, 1994, found petitioner guilty of all 19 charges. Sentencing was scheduled for approximately one month later, on June 29, 1994.
On or about June 21, 1994, petitioner, acting pro se although still represented by counsel, filed a motion to set aside the verdict, purportedly pursuant to CPL 330.30. Petitioner argued that the verdict should be set aside, because: 1) he wasn't allowed to testify before the grand jury; 2) the court lacked jurisdiction; 3) there had been no probable cause for the search warrant; 4) he had been denied a speedy and impartial trial; 5) the court had improperly denied his request for a probable cause hearing; 6) the court should not have reconsidered its ruling on the Frye hearing; 7) the court should not have allowed Kenneth Marks to testify; 8) Kenneth Mark's testimony was legally insufficient; 9) the court erred by giving a Molineux charge; and 10) the court erred by telling jurors he was sole judge of law, and they were sole judge of facts. Judge Drury denied the motions.
Although Judge Drury conducted probable cause hearings, on July 13, 1992, petitioner requested another hearing, for the purpose of demonstrating that an affidavit submitted by an assistant district attorney was "based on false information." Specifically, petitioner sought to challenge a statement in the affidavit that petitioner had smoked a cigarette in his parole officer's office. In fact, the parole officer indicated that petitioner had smoked cigarettes in a hallway and in a men's room in the same building as his office.
Although at the start of the trial, petitioner stipulated that he had previously been convicted of Attempted Robbery in the First Degree on June 13, 1984, at sentencing, he refused to admit either of his two prior felony convictions, and requested a hearing, citing CPL § 400.200. Petitioner's counsel stated that, "[t]he basis for that, your Honor, is that it is my belief that the defendant may never have admitted under oath essential elements to [sic] those felony convictions." (Sentencing Transcript, p. 11). Petitioner requested an adjournment of sentencing, to allow him to obtain the transcripts of the two sentencing proceedings for the earlier felony convictions. The People opposed, and produced a copy of the June 13, 1984 sentencing transcript. Judge Drury, after reviewing the transcript from petitioner's 1984 sentencing, denied the request for an adjournment and hearing, finding that petitioner was bound by the earlier, uncontroverted finding on that date that he was a second violent felony offender. Judge Drury proceeded to sentence petitioner, as a persistent violent felony offender, to concurrent sentences of 25 years to life for the sodomy and sexual abuse charges, and to concurrent sentences of two and one-third to seven years for the convictions for criminal possession of a weapon in the third degree.
Petitioner admitted to the prior felony conviction in connection with the counts charging him with Criminal Possession of a Weapon in the Third Degree, Penal Law § 265.02(1), which requires the People to prove, inter alia, that a defendant "has been previously convicted of any crime." (Trial Transcript, pp. 5-7).
Defendant filed an appeal, claiming that his convictions should be set aside for the following reasons: 1) he was denied his right pursuant to CPL 190.50[5][a] to testify before the Grand Jury; 2) he was denied his statutory and constitutional rights to a speedy trial; 3) there was insufficient evidence to support the convictions involving Karen S., or the verdict was against the weight of the evidence; 4) the evidence was insufficient to sustain the convictions involving Cherita M. and Lynette S., or the verdict was against the weight of the evidence; 5) the search warrant, blood sample order, and line-up order were issued without probable cause; 6) the trial court erred by re-opening the Frye hearing; 7) the court erred by allowing Kenneth Marks to testify; 8) he was denied his right to be tried only on charges determined by the Grand Jury; 9) prosecutorial misconduct; 10) the trial court erred by failing to adjourn sentencing to allow a hearing on the issue of persistent violent felony offender; and 11) his sentence was unduly harsh and excessive.
On March 14, 1997, the New York State Supreme Court Appellate Division, Fourth Department, reversed petitioner's convictions as to five of the women, and dismissed Indictment 90-0122-S01, but confirmed his convictions regarding Karen S., as charged in Indictment 92-0445-001. In that regard, the Appellate Division found that petitioner was denied his right to testify before the grand jury, with respect to the superseding indictment, Indictment No. 90-0122-S01, but had waived that right with as to Indictment No. 92-0445-001. Moreover, the Appellate Division also expressly held that petitioner's statutory and constitutional rights to a speedy trial were not violated, and that Judge Drury had properly exercised his discretion in re-opening the Frye hearing, adding, "[a]s the trial court noted, no general consensus had as yet developed among human population geneticists whether to accept the `ceiling principle' until sometime after the close of proof in the first Frye hearing on May 7, 1992." Moreover, as to the convictions involving Karen S., the court found that:
The evidence supporting his conviction of those charges is legally sufficient and his conviction is not against the weight of the evidence. The complainant identified defendant in a lineup when she heard him speak. Voice identification is admissible, subject to the same due process safeguards as visual identification. An inmate incarcerated with defendant after his arrest testified that defendant told him that he had made his victims perform acts of sodomy. Items of clothing seized from defendant's residence pursuant to a search warrant closely matched the description of the clothing defendant wore at the time of the attack upon the complainant. Further, defendant's modus operandi, as testified to by the other victims, supports defendant's conviction. Defendant does not directly argue that the dismissal of the superseding indictment involving the other victims made their testimony concerning defendant's modus operandi excludable. Their testimony regarding defendant's modus operandi would be admissible in any event. We further conclude that the People disproved defendant's alibi defense beyond a reasonable doubt.
People v. Greco, 230 A.D.2d 23, 30 (4th Dept. 1997) (citations omitted). The Court further rejected petitioner's arguments regarding probable cause. Id. Finally, the court rejected petitioner's claim that Judge Drury erred by sentencing petitioner as a persistent violent felony offender without a hearing, noting that, petitioner "failed to specify, either before the sentencing court or on appeal, what factual allegations in the persistent violent felony offender statement formed the basis of his contentions that his prior violent felony conviction was illegally obtained." Id. at 31 (citations omitted). In that regard, CPL § 400.15(3), dealing with second violent felony offenders, and made applicable to persistent violent felony offenders by CPL § 400.16, states that, "[i]f the defendant wishes to controvert any allegation in the statement [filed by the prosecutor alleging predicate felonies], he must specify the particular allegation or allegations he wishes to controvert." On June 12, 1997, the New York Court of Appeals denied petitioner leave to appeal.
Subsequently, on January 15, 1998, petitioner, proceeding pro se, filed a second motion pursuant to CPL § 440.10, seeking to have his remaining convictions involving Karen S. set aside. Petitioner alleged that the jury was biased by hearing evidence, namely, modus operandi and DNA evidence, pertaining to the crimes against the other five women, which convictions were vacated. By Decision dated March 24, 1998, Judge Drury denied petitioner's motion, finding, inter alia, that petitioner's claims were procedurally barred, because he had failed to raise them on his direct appeal. On or about March 27, 1998, petitioner applied for a certificate granting him leave to appeal to the Appellate Division, Fourth Department. On July 24, 1998, the Appellate Division, Fourth Department denied petitioner's application.
On August 7, 1998, petitioner filed the subject petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition [#1], petitioner indicated that his convictions should be set aside for the following five reasons: 1) he was denied his right to a speedy trial; 2) there was insufficient evidence to support the convictions involving Karen S., or the verdict was against the weight of the evidence; 3) the search warrant, blood sample order, and line-up order were issued without probable cause; 4) the trial court erred by re-opening the Frye hearing; and 5) the trial court erred by failing to adjourn sentencing to allow a hearing on the issue of persistent violent felony offender. Petitioner subsequently filed a motion in state court pursuant to CPL 440.20(1), alleging that the persistent violent felony offender statute is unconstitutional, and that his sentence is therefore unlawful. Petitioner sought to have this Court hold his habeas petition in abeyance, while he exhausted that claim in the New York State Courts. This Court indicated that it follows the "total exhaustion rule," and it gave petitioner the opportunity to withdraw the petition to permit exhaustion of all of his claims, or to pursue his petition as written. (Decision and Order [#14]) Petitioner subsequently withdraw the application to hold his petition in abeyance, and indicated that he wished the Court to consider only his original petition. (See, Petitioner's Letter [#15]). Later, after he had exhausted his challenge to the constitutionality of CPL § 440.20(1) in the New York State Courts, petitioner again sought to amend his petition to add that claim, however, this Court denied that application (See, Decision and Order [#17]), noting that he had not sought permission from the Second Circuit Court of Appeals to file a second or successive petition).
The habeas statute provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b)(1)(A). A habeas petitioner must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). Typically, this means that federal habeas claims must have been included in both the petitioner's appeal to the state's intermediate appellate court and in an application for permission to appeal to the state's highest court. See, O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734. Failure to exhaust may be excused, however, if the petitioner shows cause and prejudice. Wainright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). Petitioner did not attempt to demonstrate cause or prejudice.
ANALYSIS
1. Speedy Trial
Petitioner first contends that his statutory right to a speedy trial, pursuant to CPL 30.30, was violated. However, that is a state-law claim which is not properly before this Court on a petition for habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67,112 S.Ct. 475, 480 (1991) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.'") (citation omitted). In any event, based on the discussion below, the Court finds that petitioner's statutory speedy-trial rights were not violated.
Petitioner also contends that his federal constitutional right to a speedy trial was violated. He specifically refers to the period between his indictment, October 3, 1991, and the start of his trial, April 12, 1994, a period of approximately 31 months. It is well settled that "[t]he right of an accused to a speedy trial is guaranteed by the sixth amendment, U.S. Const. amend. VI, and is imposed upon the states by the due process clause of the fourteenth amendment. Rayborn v. Scully, 858 F.2d 84, 88 (2d Cir. 1988), cert. denied, 488 U.S. 1032 (1989) (citations omitted). In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972), the United States Supreme Court established a balancing test for determining whether or not a criminal defendant's constitutional right to a speedy trial have been violated. The court identified four factors to be considered in conducting the balancing test, namely, the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id.
In People v. Taranovich, 37 N.Y.2d 442 (1975), the New York Court of Appeals adopted a substantially similar balancing test, using the following factors: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay." In affirming petitioner's convictions, the Appellate Division, Fourth Department, examined the record in light of the Taranovich factors and found no constitutional violation. People v. Greco, 230 A.D.2d at 28.
As noted, the delay in this case was approximately 31 months. While this period is significant, it is not nearly as long as that which has occurred in many cases in which courts have found that defendants' rights to a speedy trial were not violated.
As for the reasons for the delay, there is nothing in the record to indicate that the People intentionally delayed petitioner's trial. Rather, as discussed above, the delay occurred because there were numerous legal issues to be resolved. See, Petitioner's Brief, dated August 23, 1996, submitted to the Appellate Division, Fourth Department, p. 37 ("Admittedly, this case was not a simple one . . . appellant does not deny that some of the delay in this case was occasioned by many necessary suppression hearings and motions to dismiss on the part of the defense.") The record is clear that all but a small amount of the delay was caused by the necessity of conducting the many pre-trial hearings held in response to defendant's omnibus motion. Judge Drury found that only 3 months and 21 days of delay were attributable to the People. Petitioner, however, seizes upon several additional periods of delay, which he contends are attributable to the People. First, he contends that the prosecution should be charged with the 15-day delay in the Frye hearing which occurred when he was brought to the courthouse at 9 a.m. on April 1, 1992, instead of at 2 p.m. However, the Court disagrees, since there does not appear to be any reason why petitioner could not have remained at the Courthouse until the hearing. Instead, for unknown reasons, the corrections officers who transported petitioner to the Court from the state correctional facility apparently returned petitioner to the correctional facility without consulting the court or counsel. Therefore, the Court finds that this delay was not the fault of the prosecution.
Next petitioner contends that the People should be charged with a two-month delay, between June 12, 1992 and August 4, 1992, during which the People were late in filing a response to a memorandum filed by petitioner. However, as Judge Drury found, petitioner's memorandum was itself late, as well as exceptionally lengthy, and the time in which the People responded was reasonable. Significantly, petitioner made no objection to the People's late filing at the time, but instead, waited approximately 20 months before raising the issue in his speedy-trial motion on the eve of trial.
Finally, petitioner contends that the People should be charged with the period between May 18, 1993, the date the People moved to have Judge Drury reconsider his ruling on the Frye hearing, and February 23, 1994, the date Judge Drury issued his ruling. Petitioner's argument is based solely in the assertion that the People "should have known" at the time of the original Frye hearing that DNA testing, and more particularly, the "ceiling principle" for calculating probabilities, was considered reliable in the scientific community. However, that is precisely what the Prosecution did argue, although they did not use the term "ceiling principle." Moreover, the People's expert witness, Dr. Garrick, gave uncontradicted testimony that the ceiling principle, as it had become known, became more generally accepted in the scientific community after the first Frye hearing. Moreover, Judge Drury indicated that his initial ruling on the admissibility of the DNA testing evidence was based upon his mistaken interpretation of the National Research Council's report on DNA testing. Also, Judge Drury candidly indicated several times on the record that the delays were partially attributable to him, because he was relatively inexperienced at that time in conducting Frye hearings. These factors indicate that the time expended on the re-opened Frye hearing was not the fault of the prosecution.
As to the timing of petitioner's assertion of his right to a speedy trial, the Supreme Court noted, in Barker v. Wingo, that,
[t]he more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.92 S.Ct. at 2192-93. Here, petitioner did not file his speedy trial motion until March 28, 1994, two weeks prior to the start of his trial. The Court finds that this factor weighs heavily against petitioner, since it appears his motion was a mere procedural afterthought, rather than a sincere attempt to obtain a speedy trial.
Moreover, as for prejudice, the Supreme Court in Barker v. Wingo indicated that this element has three purposes, "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired," adding, "[o]f these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." 92 S.Ct. at 2193. It is clear that, "although a showing of prejudice is not a prerequisite to finding a sixth amendment violation, courts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice." U.S. v. Jones, 129 F.3d 718, 724 (2d Cir. 1997), cert. denied, 524 U.S. 911 (1998) (citation omitted). Considering the three factors in order, the Court first finds that the delay did not result in oppressive pretrial incarceration, since, although petitioner was in custody prior to trial, the vast majority of that time in custody was attributable to a parole violation. In discussing his pretrial incarceration, petitioner also conveniently omits the fact that shortly after being released from prison, and while these charges were being investigated, he was arrested for, among other things, unauthorized use of a motor vehicle, reckless driving, and resisting arrest, and pled guilty to unauthorized use of a motor vehicle, a Class A misdemeanor, for which he was sentenced to six months in jail. As for the second factor, there is no evidence that petitioner was caused any undue anxiety by the delay, since he had an extensive criminal history. Moreover, the Court finds that any anxiety which petitioner may have experienced is minor compared to the injuries he caused his victims. Finally, as to the element of prejudice, petitioner merely asserts, in conclusory terms, that delay may have impaired his alibi witnesses' ability to recall dates. However, this claim is belied by the record, since petitioner's alibi witnesses all claimed to clearly remember the events about which they testified. Nor can petitioner claim that the passage of time hindered his ability to establish alibis, since he admits he knew that he was a possible suspect in these crimes, as well as the dates of the crimes, as early as June 1990, a month after the last assault. (Transcript of 4/11/94 appearance, pp. 20-21). Finally, although the People demanded that petitioner file a Notice of Alibi in December of 1991, but he did not do so until the eve of trial, on March 4, 1994. Therefore, the Court finds that petitioner has failed to show any evidence that he was prejudiced in preparing his defense.
In connection with his June 13, 1984 conviction for attempted robbery in the first degree, petitioner was released on parole in October 1989, shortly before the string of assaults began. In April of 1990, petitioner's parole was revoked after he was charged with unauthorized use of a motor vehicle. Petitioner remained incarcerated on this 1984 conviction until July of 1993. (See, Transcript of 4/11/94 appearance, pp. 73-74).
Petitioner was convicted on his plea of guilty to two counts of attempted robbery in the first degree on June 13, 1984. At his sentencing on that charge, before the Honorable Penny M. Wolfgang, Erie County Court Judge, petitioner admitted that he was a second violent felony offender, having previously been convicted, on February 22, 1980, of robbery in the second degree. Petitioner also had convictions for criminal possession of a weapon in the fourth degree, criminal possession of stolen property in the fifth degree, assault in the third degree, criminal possession of a controlled substance in the seventh degree, reckless driving, and petit larceny. At sentencing on the attempted robbery charges, Judge Wolfgang told petitioner, "[Y]ou're a professional criminal; you've done nothing but commit crimes since the day you were born; and nobody expects you to change at this point. And you belong in jail." Sentencing Transcript, Indictment #83-1165-001, 85-1165-002.
Based upon all of the foregoing factors, the Court finds that petitioner's constitutional right to a speedy trial was not violated. Therefore, this claim is dismissed.
2. Insufficient Evidence
Petitioner contends that there was insufficient evidence to find him guilty, or, alternatively, that the verdict was against the weight of the evidence. Only the first of these grounds states a constitutional claim. See, Garbez v. Greiner, No. O1 CIV. 9865(LAK) (GWG), 2002 WL 1760960 at *8 (S.D.N.Y. Jul. 30, 2002) ("[B]y raising a `weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review.") (citations omitted); Estelle v. McGuire, 502 U.S. at 67, 112 S.Ct. at 480. As for his challenge to the sufficiency of the evidence, the law is well settled:
In a challenge under 28 U.S.C. § 2254 to the evidentiary sufficiency of a state criminal conviction, we review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial. Petitioner bears a "very heavy burden" in convincing a federal habeas court to grant a petition on the grounds of insufficient evidence.
Ponnapula v. Spitzer, 297 F.3d 172 (2d Cir. 2002) (citations omitted). Here, petitioner does not deny that the People presented sufficient evidence to prove the charged offenses, that is, he does not deny that the victim was sodomized and assaulted, or that the attacker possessed a weapon. He merely challenges the evidence pertaining to his identification as the perpetrator. In that regard, petitioner's argument is primarily that the jurors should not have believed that Karen S. could have identified him by voice, given the passage of time between the assault and the lineup. The Court strongly disagrees. The record clearly indicates that she had ample opportunity to hear and remember petitioner's voice, since he talked throughout the assault. The Court finds these lines from the People's closing argument to be particularly appropriate: "Ladies and gentlemen, when exactly does memory fade? When does a four-month pregnant woman stop hearing the voice of her sodomizer telling her, `Better not tell your husband because he'll never want to kiss you again'?" (Trial Transcript, p. 1033). Moreover, in addition to the voice identification, the People presented evidence regarding petitioner's clothing, the fact that he smoked Winston cigarettes, his modus operandi, and his admissions to Kenneth Marks. Additionally, as the Appellate Division, Fourth Department noted, the People also presented evidence sufficient to disprove petitioner's alibi beyond a reasonable doubt. This claim is therefore dismissed.
3. Lack of Probable Cause for Search Warrant, Blood Sample, and Lineup
Petitioner next contends that the search warrant, blood sample order, and lineup order, were all issued without probable cause, in violation of his rights under the Fourth Amendment to the United States Constitution. This claim also fails, since it is well settled that, "[u]nder Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), federal habeas corpus relief is not available on the ground that the evidence produced at trial was the result of an unconstitutional search and seizure, unless the state denied the prisoner an opportunity for full and fair litigation of the claim." Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (citation omitted). Here, petitioner had a full and fair opportunity to contest these rulings before Judge Drury and before the Appellate Division, Fourth Department. Petitioner does not deny this, but alleges only that the facts set forth by the prosecution failed to establish probable cause. In other words, he merely seeks to re-litigate the issue of probable cause. However, he cannot, and, even if he could, the Court would find that there was sufficient probable cause for the search warrant, the blood-sample order, and the line-up order. Therefore, this claim is dismissed.
4. Re-opening of the Frye hearing
Petitioner contends that the re-opening of the Frye hearing violated his constitutional rights. However, this argument is moot, since his convictions involving the use of DNA testing evidence have already been set aside. The remaining convictions are not based upon DNA identification. Petitioner suggests, however, that there may have been an improper spillover effect from the charges involving DNA testing evidence. In essence, his argument is that Judge Drury should have granted severance as between the cases which involved DNA testing and those that did not. This argument fails for several reasons.
First, this claim is procedurally barred. Petitioner raised this same argument in his second motion pursuant to CPL § 440.10, filed on January 15, 1998. Judge Drury denied that petition, pursuant to CPL § 440.10(2)(c) and People v. Cooks, 67 N.Y.2d 100 (1986), finding that petitioner's claims were barred, because he had failed to raise them on his direct appeal. The Appellate Division, Fourth Department, denied leave to appeal. Therefore, the Court finds that petitioner's claim of spillover effect is barred pursuant to Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043 (1989), wherein the Supreme Court held that "a procedural default does not bar consideration of a federal claim on . . . habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. at 1043. Here, Judge Drury clearly denied petitioner's second 440 motion on state-law procedural grounds, specifically, New York Criminal Procedure Law, § 440.10(2)(c). Where, as here, the petitioner's claim is barred by an adequate and independent state law ground, federal review of the claim is barred unless the petitioner can demonstrate cause for the procedural default and prejudice flowing therefrom, or that "failure to consider the claim will result in a fundamental miscarriage of justice. Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir. 1996), cert. denied, 519 U.S. 895 (1996) (citations and internal quotations omitted). The Court finds that petitioner has not shown cause or prejudice, or that this Court's failure to consider the claim will result in a fundamental miscarriage of justice.
Even assuming, arguendo, that the Court could consider plaintiff's claim, it must still be denied. Although petitioner now claims there was a prejudicial spillover effect from having the charges tried together, he clearly waived that claim on November 12, 1993, when he withdrew his earlier motion for severance, and indicated that he did not oppose the consolidation of the two indictments. (Transcript of 11/12/93 appearance, p. 2). At that time, petitioner's counsel stated:
[T]here was a motion by the prosecution to consolidate the trial, that indictment with the 92-0445 indictment [sic] that involved Karen S. . . . We do not oppose that consolidation, your Honor. I have discussed these matters at length with Mr. Greco. We believe that from a strategic standpoint, and also just for his well-being, that one trial with all issues, with all alleged victims, would be in his best interests.
(Id., pp. 2-3) (emphasis added). Therefore, this case stands in stark contrast to most habeas petitions alleging an unconstitutional spillover effect, since here, petitioner expressly indicated that he wanted the charges consolidated for trial.
Moreover, Judge Drury gave a limiting instruction, indicating to the jury that it was required to consider each of the crimes separately, and could only consider evidence of the other crimes charged insofar as it related to modus operandi. (Trial Transcript, p. 1104). This Court "must presume the jury followed these instructions unless there is an overwhelming probability that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant." Herring v. Meachum, 11 F.3d 374, 378 (2d Cir. 1993) (citations and internal quotations omitted), cert denied, 511 U.S. 1059 (1994). Here, petitioner has not attempted to make such a showing. In any event, it appears clear, based upon the jury's separate requests for certain types of evidence during deliberations, that the jury considered the charges involving each of the six women separately. Nor has petitioner otherwise shown that he suffered any actual prejudice. See, Herring v. Meachum, 11 F.3d at 377-78 ("[W]here a defendant is claiming a due process violation based upon joinder of offenses, he must, to succeed, go beyond the potential for prejudice and prove that actual prejudice resulted.") (emphasis in original). Finally, there was sufficient evidence to convict petitioner of the crimes against Karen S. without regard to the DNA testing evidence presented as to the other victims. Therefore, petitioner's claim is dismissed.
Petitioner made no objection to the court's jury instructions.
Petitioner's argument loses much of whatever strength it may have otherwise had, when one considers that elsewhere in his papers, he states that the DNA evidence was "far from compelling:" "The DNA evidence . . . indicated that every one person out of 203 or 304 people could have presented the same DNA pattern produced from the sample material in those cases. Assuming a population of one million people in the Buffalo metropolitan area, such fractions clearly neither point to appellant alone nor otherwise establish his identity as the perpetrator of any of those incidents beyond a reasonable doubt, much less his identity as [Karen S.'s] attacker." (Habeas Petition, attachments p. 43). Thus, petitioner has admitted that the DNA evidence was unlikely to have any prejudicial effect with regard to the charges involving Karen S.
Significantly, petitioner does not allege that the alleged "spillover" caused his trial to be fundamentally unfair. See, U.S. v. Torres, 901 F.2d 205, 230 (2d Cir. 1990) (Noting that a defendant "must show that he was so severely prejudiced by the joinder as to have been denied a fair trial, not that he might have had a better chance for acquittal at a separate trial.") (citations and internal quotations omitted). Instead, petitioner makes the illogical argument that, because jurors were instructed that they could consider modus operandi evidence, that they must have also considered the DNA evidence from the other crimes in convicting him of the crimes against Karen S. . (Habeas Petition, Attachments, p. 73).
5. Sentencing as Persistent Violent Felony Offender
Finally, petitioner contends that, at sentencing, Judge Drury improperly denied him an adjournment and a hearing on the issue of whether or not he is a persistent violent felony offender. This claim is also procedurally barred. The Appellate Division, Fourth Department, citing CPL § 400.15, 400.16, and People v. West, 181 A.D.2d 945 (3d Dept. 1992), expressly held that this claim was procedurally barred because petitioner failed to specify the factual allegations upon which he claimed that his prior violent felony conviction was illegally obtained. Even if he had, it appears clear that petitioner still would have been procedurally barred from contesting his previous second felony offender adjudication, since he never attempted to have it set aside. See, People v. Morcilio, 91 A.D.2d 1074 (2d Dept. 1983) ("Since defendant never successfully attacked his 1974 sentence as a second felony offender, either by way of a direct appeal or appropriate postjudgment motion, it was binding upon him at the sentencing herein.") Moreover, petitioner has failed to demonstrate any cause or prejudice. Rather, he makes only a conclusory claim that a review of the sentencing transcripts "might" have shown that his pleas were not knowingly and voluntarily made. Petitioner offers no explanation for why he failed to obtain those transcripts during the month between the end of the trial and the sentencing. In any event, at sentencing petitioner was able to review the sentencing transcript for his June 13, 1984 conviction for attempted robbery in the first degree, which is the only plea he now contests. Therefore, this claim is also dismissed.
In his habeas petition, petitioner states: "To be sure, the second violent felony offender adjudication was binding upon appellant insofar as the 1980 robbery conviction was concerned. Since the instant issue was a persistent felony offender adjudication, requiring two prior valid convictions, however, appellant was statutorily entitled to challenge the constitutionality of the guilty plea entered before Judge Wolfgang on June 13, 1984. (Habeas Petition, attachment p. 87). At his sentencing on the instant convictions, the transcript to the 1984 sentencing was available to petitioner, having been provided by the People. (Sentencing Transcript, p. 19).
CONCLUSION
Petitioner's application for a writ of habeas corpus is denied, and the petition is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
So Ordered