Opinion
98-CV-6230
October 3, 2002
For the Plaintiff: Wayne Clark, pro se #94-B-1262 Collins Correctional Facility, Collins, New York.
For the Defendant: Raymond C. Herman, III, Esq., Assistant District Attorney Erie County District Attorney's Office, Buffalo, New York.
DECISION and ORDER
INTRODUCTION
Wayne Clarke ("Clarke"), proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that his Sixth Amendment and Fourteenth Amendment rights under the federal Constitution were violated. Pursuant to Rule 8 of Rules Governing Habeas Corpus cases under Section 2254 in the United States District Courts and upon review of the answer, transcript and record, the Court determines that an evidentiary hearing is not required. After considering the parties' submissions and the entire record, the petition is denied.
BACKGROUND
On April 12, 1993, Clarke was arrested and charged with four burglaries in the Buffalo area which occurred within days of each other. He was indicted on September 29, 1993 on one of the burglaries, and then another on October 12, 1993. Clarke v. Kelly, No. 97-CV-6533T (W.D.N.Y. June 30, 1998) (order dismissing petition for a writ of habeas corpus) at 1.
On January 26, 1994, Clarke was convicted on the first indictment of burglary in the second degree, criminal mischief in the fourth degree and possession of burglar's tools. It is that conviction which is at issue here. The facts behind the first indictment are as follows: On April 12, 1993, Clarke was arrested at 24 Anderson Place, a residential house in the City of Buffalo, New York. Clarke testified that after being thrown out of his apartment, an acquaintance referred him to 24 Anderson Place to find shelter at the home of another acquaintance for a few days. People v. Clarke, No. 93-0799 (N.Y.Sup.Ct. May 13, 1994) (Trial transcript, January 24-26, 1994) ("Tr."), at 133.
Clarke testified that he proceeded to 24 Anderson Place, rang the front door bell and pounded on the door. When no one answered, he stated that he went to the back door where he entered the dwelling and continued into the basement. Clarke testified that he fell asleep in a pile of laundry where the police later found him. Tr. at 136. Officer Mark Tartaro ("Tartaro"), the arresting officer, testified that his partner, Officer Gerry Jargiello ("Jargiello"), and he received a radio call at 3:40 in the afternoon for a burglary in process. Annie Brown ("Brown"), a neighbor near 24 Anderson Place, testified that she was drawn to her window by a loud pounding noise from outside. She indicated that she was suspicious when she saw a man at her neighbor's back door, "where nobody is allowed," and she called 911. Tr. at 42, 45.
Tartaro and Jargiello testified that it took approximately a minute-and-a-half to respond to the call. They stated that they did not see any signs of a forced entry in the front, so they proceeded to the rear of the house, and there observed that the back door was dented and the lock for the door was laying on the cement pavement. Tartaro and Jargiello indicated that they heard "loud banging and scraping coming from inside," after which they opened the door. Tr. at 44.
The officers testified that when they opened the outside door, they saw Clarke run from the inside locked kitchen door down the stairs to the basement, leaving a bent, knife-like gardening tool behind. Tr. at 82. Agnes Rizzio ("Rizzio"), the resident of the home, testified that she had left the tool unbent and laying in the corner near the locked kitchen door. Tr. at 56. Tartaro and Jargiello testified that they followed Clarke into the basement and found him in the corner covered with a pile of clothes. Tr. at 75-79.
Rizzio was not at home at this time.
Upon further inspection of the kitchen door, Tartaro and Jargiello stated that there were narrow scratch marks, approximately an inch apart, that spanned from just below the lock to the doorjamb. Tartaro indicated that the distance between the points of the tool and the distance between the scratches on the door were approximately the same. Tr. at 82. According to Tartaro's testimony, after the officers arrested Clarke and advised him of his Miranda rights, Clarke, while in the back seat of the police car, asked, "How did you catch me? I know I was making a lot of noise trying to get in the second door and I ran into the basement figuring you might not find me." Tr. at 86.
Miranda v. Arizona, 384 U.S. 436 (1966)
On February 23, 1994, one week after Clarke was found guilty after trial of burglary in the second degree, criminal mischief in the fourth degree and criminal possession of burglar's tools on the first indictment, defense counsel, Edward Robinson ("Robinson"), disclosed to the trial court, Honorable Mario J. Rossetti, Justice of State Supreme Court 8th Judicial District, during a pretrial conference pertaining to the second indictment, a potential conflict of interest. Specifically, Robinson informed the court that his secretary's uncle was the victim of the burglary charge in the second indictment.
Robinson asked to withdraw from the second case, because Clarke had indicated dissatisfaction with his services and because of the potential conflict of interest. However, Justice Rossetti denied Robinson's motion and determined, after a hearing in which defense counsel testified that he did not believe his secretary's relation to the victim would affect his ability to represent Clarke, that there was no conflict of interest. People v. Clarke, No. 93-0799-701 (N.Y.Sup.Ct. November 19, 1996) (Memorandum and Order) at exhibit E, A30-34. In his Memorandum of Law in Support of Petition for Writ of Habeas Corpus, ("Clarke's Memorandum"), Clarke argues that Robinson knew of the conflict more than five months before, because his secretary had photocopied documents with the uncle's name on them. Clarke's Memorandum at 2-5.
On May 13, 1994, Justice Rossetti sentenced Clarke as a persistent violent felony offender to an indeterminate term of imprisonment having a minimum of fifteen years and maximum of life on his conviction for burglary in the second degree as to the September 29 indictment. He also imposed two concurrent one-year sentences on the remaining charges. Clarke filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law section 330.30, which was denied without a hearing on April 21, 1994. People v. Clarke, No. 93-0799-701 (N.Y.Sup.Ct. November 19, 1996) (Memorandum and Order) at 2.
Clarke appealed the May 13, 1994 judgment of conviction to the New York State Supreme Court, Appellate Division, Fourth Judicial Department ("Fourth Department"). On December 22, 1995, the Fourth Department modified Clarke's sentence to an indeterminate term of incarceration of eight years to life, but affirmed his conviction in all other respects. People v. Clarke, 222 A.D.2d 1035 (N.Y.App.Div. 1995). The Fourth Department also denied, on March 8, 1996, Clarke's motion to reargue the appeal. People v. Clarke, No. Motion 1535/95, 1996 WL 112700, at *1 (N.Y.App.Div. 1996). On June 18, 1996, the New York State Court of Appeals denied Clark's leave to appeal the May 13, 1994 conviction. People v. Clarke, 647 N.Y.S.2d 168 (1996).
On January 9, 1996, Clarke filed a motion in New York State Supreme Court, pursuant to New York Criminal Procedure Law section 440.10, to vacate the May 13, 1994 judgment of conviction. That motion was denied on November 14, 1996. People v. Clarke, No. 93-0799-701 (N.Y.Sup.Ct. November 19, 1996) (Memorandum and Order) at 8. Clarke then filed for a certificate granting leave to appeal the denial to the Fourth Department pursuant to New York Criminal Procedure Law section 460.15. Leave to appeal was denied by the Fourth Department on April 29, 1997. People v. Clarke, No. 93-0799-S01 (N.Y.App.Div. Apr. 29, 1997) (order denying leave to appeal to the Fourth Department). Less than one year later, on April 22, 1998, Clarke filed the present application for a writ of habeas corpus.
Clarke's petition raises two main points that have been preserved. First, he claims he was denied his Sixth Amendment right to counsel, both because of a conflict of interest involving Robinson, and because Robinson was ineffective during trial. As to the latter, Clarke cites the following alleged deficiencies: failure to object to testimony or questioning; failure to request a jury instruction on the use of circumstantial evidence; failure to object to the deliverance of a burden-shifting charge concerning Clarke's intent regarding the burglary charge; failure to pursue a line of questioning involving a camera found in the basement; failure to enter the schematic of the complainant's rear hall into evidence; and failure to effectively cross-examine Jargiello and Tartaro about their conflicting testimony. Clarke's Memorandum at 14-27.
Clarke's second claim alleges that evidence supporting his conviction for burglary in the second degree was legally insufficient under the Fourteenth Amendment. He claims that he did not forcibly enter the dwelling and there was no other tangible or credible evidence to prove that he attempted to remove anything from the house, or that he was in possession of burglar's tools. Clarke's Memorandum at 32.
ANALYSIS
On July 31, 1998, the Court found that the petition was timely filed; thus, it will proceed to examine the merits of Clarke's claims. 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). Because Clarke raises two distinct claims, the Court will separately address each below.
A. Sixth Amendment Right to Counsel
The Sixth Amendment guarantee of counsel in criminal trials protects the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 684-85 (1984). A claim for ineffective assistance of counsel has two components:
First the defendant must show that counsel's performance was deficient. this requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. In this regard, the issue is whether counsel provided "reasonably effective assistance." In order to succeed in his claim, petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Id. In Strickland, the Supreme Court held that, when evaluating the effectiveness of counsel,
[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Id. at 689 (citation and internal quotations omitted). Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. As to that, the Court stated, "[a]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id. at 693. In this regard, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In considering the effectiveness of counsel, a court "must consider the totality of the evidence before the judge or jury." Id. at 695.
The Second Circuit has outlined three categories of Sixth Amendment violations regarding the right to counsel. United States v. O'Neil, 118 F.3d 65 (2d Cir. 1997). The first category is per se violation, only found where the attorney is not licensed to practice law or where the attorney was implicated in the defendant's crime. Id. at 71. Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980). The second category involves conflicts of interest between client and counsel that do not rise to the level of a per se violation, "but may jeopardize the adequacy of representation." Id. The third is unrelated to a conflict of interest claim and is discussed in depth below. Considering Robinson's performance in this case, the Court finds that the errors and failures alleged do not either singularly, or in the aggregate, amount to a denial of Clarke's Sixth Amendment right to counsel.
Here Clarke contends that Sixth Amendment violations relating to categories two and three occurred. Specifically, as indicated above, he contends that Robinson had a conflict of interest and that Robinson was ineffective at trial.
1. Conflict of Interest
Clarke contends his Sixth Amendment right to counsel was violated because of a conflict of interest. It is well settled that in order to succeed on this category of claim, the defendant must first establish an actual conflict of interest, and must show that the conflict resulted in a "lapse of representation." Cuyler v. Sullivan, 446 U.S. 335, 349 (1980).
In the instant case, Clarke argues that his attorney's performance was compromised because the attorney's secretary's uncle was a victim of one of the charged burglaries. These allegations fit into the second category outlined above. Thus, Clarke must first show a conflict, and then show that the conflict resulted in a lapse of representation. In his decision, dated June 30, 1998, the Honorable Michael A. Telesca, United States District Judge, Western District of New York, addressed this same claim in another habeas corpus petition by the same petitioner regarding the second indictment, and found no evidence to indicate that his "interests and his attorney's interests conflicted." Clarke v. Kelly, No. 97-CV-6533T (W.D.N.Y. June 30, 1998) (order dismissing petition for a writ of habeas corpus) at 11. Following trial on the second indictment, a jury convicted Clarke of burglary and criminal mischief on May 25, 1994. On November 26, 1997, Clarke filed a second separate petition seeking a writ of habeas corpus on the second conviction, which was subsequently denied. In the petition, he asserted that: the trial court denied him due process of law and a fair trial by refusing to charge the jury on the lesser included offense of criminal trespass in the second degree; the evidence was insufficient to support the conviction; he was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution because his attorney had a conflict of interest; and the trial court erred by failing to conduct an adequate Gomberg inquiry to ascertain the risk associated with the alleged conflict of interest and to allow petitioner to give his informed consent to be represented by defense counsel. Clarke v. Kelly, No. 97-CV-6533T (W.D.N.Y. June 30, 1998) (order dismissing petition for a writ of habeas corpus) at 3.
People v. Gomberg, 38 N.Y.2d 307 (1975).
In Sanders v. United States, 373 U.S. 1, (1963), the Court found that,
[c]ontrolling weight may be given to denial of a prior application for federal habeas corpus relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.
"Under the doctrine of issue preclusion, or collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." 18 Moore's Federal Practice, § 132.01 (Matthew Bender 3d ed.).
In the instant case, it is clear that Clarke is presenting the same ground and same conflict of interest as he did in his prior petition for a writ of habeas corpus, denied by Judge Telesca. In the previous decision, Judge Telesca determined that no conflict of interest existed. The prior denial of this same claim rested on an adjudication of the merits of the ground presented in the previous application. Finally, the burden is on Clarke to demonstrate that even though the previous application was determined against him, the ends of justice would be served by a redetermination of same issue. Id. at 17. By using the words "the ends of justice," the Court meant to include only situations in which the facts had not been adequately developed on the first application and instances where a change in the law had occurred since the previous determination. U.S. ex rel Schnitzler v. Follette, 406 F.2d 319 (2d Cir. 1970). Clarke has failed to meet his burden, especially considering that the secretary's uncle was not a complainant in this trial, making his present allegation of conflict a step further removed from the prior.
The Court notes that there were only legal issues raised and no factual issues in the denial of the prior application. Cf. Sanders v. United States, 373 U.S. 1 (1963) (if factual issues were raised in prior application, an evidentiary hearing must be held); Motley v. United States, 230 F.2d 110 (5th Cir. 1956) (factual issues that were raised warranted the holding of an evidentiary hearing).
Clarke has failed to establish that his claim of attorney conflict of interest should be re-examined on the merits and, therefore, in accordance with the doctrine of federal collateral estoppel, the Court does not need to further address this claim.
2. Deficiency in Trial Performance
As maintained above, Clarke claims that Robinson was deficient in several respects. At the outset, it is well established that in gauging Robinson's alleged deficiencies, the Court must be highly deferential and operate with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. at 689.
With regard to Clarke's contention that Robinson failed to request a special jury instruction on circumstantial evidence, the Court finds that this claim must fail. A special instruction on circumstantial evidence is required under New York law only when the prosecution's case rests solely on circumstantial evidence. See People v. Ruiz, 52 N.Y.2d 929 (1981); People v. Struss, 228 A.D.2d 711 (N.Y.App.Div. 1996); People v. Barnes, 50 N.Y.2d 375 (1980). Under New York law, when a case rests on circumstantial evidence alone, a defendant may request a special jury instruction stating that "'the circumstantial facts proved must exclude to a moral certainty every hypothesis but guilt.'" People v. Mickewitz, 236 A.D.2d 793, 793 (N.Y.App.Div. 1997) (quoting 1CJI[NY] 9.05 at 475). However, under federal law, which controls as to this proceeding, it is clear that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970).
The Court notes that contrary to Clarke's claims, the prosecution relied on both circumstantial and direct evidence. Thus, even under state law, this claim would fail. See People v. Ruiz, 52 N.Y.2d 929 (1981).
Thus, Robinson's failures to object to the jury charge or request a circumstantial evidence charge do not amount to a deficiency under Federal law.
Even if Robinson's failure to request a jury instruction on circumstantial evidence or failure to object to the jury charge was not reasonable and amounted to a deficiency, Clarke's claim would nonetheless fail, because he suffered no prejudice. The failure to give a circumstantial evidence instruction amounted, at best, only to harmless error in this case and would not have had an effect on the outcome since the evidence overwhelmingly established Clarke's guilt of the crimes charged and excluded to a moral certainty every reasonable hypothesis of innocence. See People v. Sumter, 173 A.D.2d 659 (N.Y.App.Div. 1991). Clarke cannot demonstrate, nor is it reasonable to assume, that the result of his trial would have been different if Justice Rossetti had given the instruction. Thus, measured under New York law, Robinson's failure to request the special instruction does not undermine confidence in Clarke's conviction. See Buckley v. Meachum, 68 F.3d 1518, 1522-23 (2d Cir. 1995) (where underlying claim involves only state law, looking to probable outcome of direct appeal in state court will be adequate under federal constitutional law doctrine to preserve confidence in outcome and protect defendant from prejudice).
Moreover, an analysis of this issue under New York law would lead to the same result. In this case, the prosecution established by direct evidence through the eyewitness testimony of the arresting officers and the resident that Clarke was in the dwelling without permission. See People v. Barnes, 50 N.Y.2d 375, 380 (1980) (police eyewitness testimony considered direct evidence in New York State courts). Therefore, the prosecution's case did not rest entirely upon circumstantial evidence. Although, the intent element of the crime of burglary in the second degree was inferred through the use of circumstantial evidence, it has been established that even in situations where a particular state of mind is an essential element of a crime, necessarily provable only by circumstances surrounding the commission of an offense, the jury charge on circumstantial evidence is not a necessity. People v. Roldan, 211 A.D.2d 366 (N.Y.App.Div. 1995).
Turning to Clarke's claim that Robinson erred in failing to object to the deliverance of a "burden-shifting charge" concerning the intent to commit a crime element of burglary, the Court determines he mischaracterizes what occurred. Clarke is relying on the prosecution's use of limiting language in their Bill of Particulars, Prosecution Responding Affidavit ¶ 20 ("The defendant intended to commit larceny and criminal mischief"), to argue that the prosecution created an obligation to prove that he knowingly and intentionally entered the dwelling with an intent to commit a specific crime, rather than the general intent that is required in the statute for burglary in the second degree. Clarke argues that the Court erred in issuing an instruction to the jury stating that only intent to commit a crime was necessary to satisfy the intent element of burglary in the second degree. Furthermore, Clarke states that Robinson should have objected to Justice Rossetti's charge and the failure to do so constitutes an unreasonable error by counsel. Even if the Court assumes that this error by counsel was unreasonable, this claim still must fail, because Clarke suffered no prejudice and the outcome of the trial would not have been different had Robinson objected to the charge. The jury convicted Clarke of criminal mischief. Thus, it is logical to assume that even if the trial judge had given a specific intent charge, they still would have convicted Clarke of the crime of burglary in the second degree because of his intent to commit the specific crime of criminal mischief.
It is not necessary for the prosecution in a burglary trial to prove the actual crime which the defendant intended to commit unless it expressly limits itself to a more specific theory of intent. People v. Barnes, 50 N.Y.2d 375, 379 n. 3 (1980).
Clarke also argues that since the prosecution, in its Bill of Particulars, stated that he unlawfully entered the dwelling to commit two specific crimes (criminal mischief and larceny) and used the conjunctive word "and," it must prove Clarke intended to commit both crimes in order to meet the enhanced burden of proof. Clarke argues that Robinson did not address the prosecution's failure to even attempt to prove Clarke's intent to commit larceny. The Court finds that Robinson's performance was not deficient, since it is well established in the Second Circuit that a jury may convict on finding any elements of a disjunctively defined offense, despite the use of conjunctive language in the indictment. See United States v. Schiff, 801 F.2d 108 (2d Cir. 1986); Garcia v. United States, 1998 WL 430552 (S.D.N.Y., 1998) No. 97 CIV. 2962 (PKL), S2 90 CR. 890 (PKL), 97 CIV. 2545 (PKL), 97 CIV. 2831 (PKL); United States v. Cioffi, 487 F.2d 492 (2d Cir. 1974). Thus, the conjunctive word "and" in the Bill of Particulars could also mean the disjunctive word "or." Therefore, Robinson did not err in failing to pursue an argument regarding what crime Clarke intended to commit upon entering the dwelling.
The Court will now evaluate Clarke's other claims arising from Robinson's alleged procedural errors. Clarke claims that Robinson failed to object to cross-examination while Clarke was testifying, did not pursue a line of questioning regarding a camera found with defendant when he was arrested, failed to adequately cross-examine prosecution witnesses in order to diminish their credibility, and failed to enter the schematic of the complainant's rear hall into evidence.
The Court finds that all of the alleged procedural deficiencies mentioned above are more reflective of strategic second guessing than constitutionally deficient representation. Counsel's strategy choices were well within the range of professionally reasonable judgment. The record demonstrates that the cross-examination conducted of each witness was sufficient to constitute "meaningful adversarial testing" of the prosecution's case. See United States v. Cronic, 466 U.S. 648, 656 (1984); United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir 1987) ("We will not second guess trial counsel's defense strategy simply because the chosen strategy has failed"). It is also well established that counsel does not have to pursue every defense or line of questioning, especially those that he feels are without merit, to render effective assistance. See DeJesus v. Greiner, No. 01 CIV. 2178 (SAS), 2001 WL 873199, (S.D.N.Y., 2001). Thus, Clarke's allegations of Robinson's procedural deficiencies must fail as they do not satisfy the first prong of the Strickland test.
Even assuming, arguendo, that Robinson's actions were deficient and unreasonable, it is clear that Clarke cannot satisfy the second prong, since he cannot prove that he suffered any prejudice as a result of these actions. Clarke cannot demonstrate, nor is it reasonable to assume, that the result of his trial would have been different if Robinson's actions had been any different. In fact, the evidence in this case was so overwhelming that there is no reasonable probability that, but for the alleged deficiencies, the outcome would have been any different.
B. Due Process Claims/Sufficiency of Evidence
Clarke also asserts that the evidence was legally insufficient to prove beyond a reasonable doubt that he intended to commit a crime upon entering the dwelling. When reviewing an insufficiency of evidence claim, the Court must view the evidence in the light most favorable to the prosecution, and must use a standard that will determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Clarke was found guilty of burglary in the second degree. "[A] person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when the building is a dwelling." N.Y. PENAL LAW § 140.25(2) (McKinney 1999). The two arresting officers testified that, upon their arrival, they found the back door of the dwelling was dented, and the lock for the door was on the ground. While they were inspecting the door, they heard "loud banging and scraping coming from the inside." Tr. at 42. Upon entering, the officers discovered the defendant, who ran from them into the basement, leaving, where he had stood, a knife-like gardening tool with two prongs at the end of it that were bent backwards. The resident of the home testified that she had left the tool, unbent, laying on the inside corner of the locked door that was broken into. Further inspection by the police discovered narrow scratch marks on the inside locked door to the kitchen that were the same distance apart as between the points of the tool. The resident also noticed that the deadbolt on the door to the kitchen had been loosened and was ready to fall out. After the officers discovered Clarke inside the dwelling and arrested him, they testified that Clarke, while in the back seat of the police car, stated, "[h]ow did you catch me? I know I was making a lot of noise trying to get in the second door and I ran into the basement figuring you might not find me." Tr. at 86. The neighbor, Brown, also identified Clarke and testified that he was at the neighbor's back door just minutes before the police arrived, which leads to the reasonable conclusion that Clarke did not have time to fall asleep in the laundry pile as he alleged. The homeowner testified that she did not give permission to Clarke to enter the dwelling. Tr. at 61.
Ample direct evidence shows that Clarke is guilty of burglary in the second degree having knowingly entered unlawfully into a dwelling with intent to damage property therein. N.Y. PENAL LAW §§ 140.25(2) 145.00 (McKinney 1999). Even if the prosecution did not have direct physical evidence, a "conviction may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness's credibility." Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (citation and internal quotations omitted). When faced with a record from which conflicting inferences may be drawn, the habeas corpus court must presume, even if the record does not show it affirmatively, that the trier of fact resolved the conflict in favor of the prosecution and must defer to that resolution. See Wright v. West, 505 U.S. 277, 297 (1992). It is clear that the jury's verdict is not against the weight of the evidence. People v. Bleakley, 69 N.Y.2d 490, 495 (1987). Considering the evidence presented, a rational trier of fact could reasonably have found Clarke guilty of burglary in the second degree beyond a reasonable doubt. Therefore, the record demonstrates that sufficient evidence supports Clarke's conviction of burglary in the second degree, and, thus, habeas relief will not be issued on this ground.
CONCLUSION
Therefore, Clarke's petition for a writ of habeas corpus is denied in all respects. Moreover, "because the issues raised in the petition are not the type that a court could resolve in a different manner, and because these issues are not debatable among jurists of reason, this court concludes that the petition presents no federal question of substance worthy of attention from the Court of Appeals and, therefore, pursuant to 28 U.S.C. § 2253 and Fed.R.App.P. 22(b), this court denies a certificate of probable cause. Finally, because it appears that any appeal would not be taken in good faith, leave to appeal in forma pauperis will be denied." Smith v. Sullivan,1 F. Supp.2d 206 (W.D.N.Y. 1998).