Finley v. Graham

STEVEN FINLEY, Petitioner, v. HAROLD D. GRAHAM, Superintendent at Auburn Correctional Facility, Respondent.

Case No. 12-CV-9055 (KMK) (PED)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

December 31, 2015

ORDER ADOPTING R&R

KENNETH M. KARAS, District Judge:

Steven Finley ("Petitioner"), proceeding pro se, brings a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 ("Petition"), challenging his conviction for three counts of attempted escape in the first degree, one count of conspiracy in the fourth degree, and one count of promoting prison contraband in the second degree. (Pet. for Writ of Habeas Corpus ("Pet.") (Dkt. No. 2).)

On August 26, 2014, Magistrate Judge Paul E. Davison ("Judge Davison") issued a Report and Recommendation ("R&R"), recommending that the Court deny the Petition in all respects. (Dkt. No. 29.) Petitioner filed timely Objections to the R&R (Pet'r's Obj's to R&R ("Pet'r's Obj's") (Dkt. No. 31)), which the Court has considered. For the reasons stated herein, the Court overrules Petitioner's Objections to the R&R, adopts the R&R in its entirety, and dismisses the Petition.

I. Background

Although the Court assumes the Parties' general familiarity with the factual and procedural background of this case as set forth in the thorough R&R, the Court will briefly summarize the facts most salient to the Petition.¹

A. Factual Background

On February 3, 2004, Petitioner was charged, along with fellow inmate Nicholas Zimmerman ("Zimmerman"), with attempted escape in the first degree. (R&R 2.)² The felony complaint was superseded by an indictment filed on August 12, 2004, charging Petitioner with one count of bribery in the third degree, three counts of attempted escape in the first degree, five counts of promoting prison contraband in the first degree, two counts of attempted criminal possession of a weapon in the second degree, one count of conspiracy in the fourth degree, and one count of promoting prison contraband in the second degree. (Id. at 2-3; cf. Pet'r's Obj's Ex. D ("Indictment").) While Petitioner moved pretrial to sever his trial from Zimmerman, that request was later withdrawn. Following jury selection, their joint trial began on March 16, 2005. (R&R 3.)

1. The Government's Case

At trial, the prosecution sought to prove that between November 2002 and May 2003 Petitioner conspired with several individuals in three escape plots that would enable Petitionerand Zimmerman to escape from Sing Sing. Having previously confessed to their roles in the scheme, six accomplices testified at trial against Petitioner and Zimmerman. (Id. at 2.)³

Wilson, a Sing Sing corrections officer, testified that she gave Belnavis and Johnson information about the layout of the facility, prison operations, corrections officer uniforms, and staff badges in exchange for bribes. (Id. at 4-5.) Wilson admitted to permitting the co-conspirators to photograph her identification card in order to create false identification cards. Wilson also testified that she smuggled food, toiletries, and cell phones into the prison for Zimmerman. (Id. at 5.)

In testifying about the three escape plans and describing the roles of the various co-conspirators, Belnavis admitted to having paid co-conspirators (including Wilson), purchased supplies, coordinated information, sewed phony uniforms from materials obtained at a law enforcement supply store, purchased a motorcycle for Petitioner and Zimmerman to use to flee from the prison, as well as helped Boyd and Johnson create false badges and identification cards. Belnavis and Johnson both testified to obtaining 9mm and .38 caliber handguns to use in the escape. (Id.)

Boyd testified, among other things, that she purchased a cell phone for Zimmerman and helped procure the false badges at his request. She further testified that Zimmerman identified Petitioner when she visited Zimmerman at Sing Sing, informing her that both he and Petitioner would be escaping together. (Id.)

The accomplices separately testified to numerous phone calls with Zimmerman regarding the planned escapes and identified the phone calls in which Petitioner also participated. Belnavis, Johnson, Alexander, and Dubose—each of whom participated in at least one of the three escape attempts at Sing Sing—described the relevant events as follows. (Id.)⁴

a. The April 24, 2003 Attempt

On April 24, 2003, Belnavis and an individual known as "Rock" entered Sing Sing disguised as corrections officers.⁵ They carried a duffel bag containing loaded 9 mm and .38 caliber handguns, additional uniforms, pepper spray, identification cards, and badges. Meanwhile, Alexander and Johnson went to the facility to visit Petitioner and Zimmerman. Belnavis coordinated the visit and had Alexander sign in as Petitioner's visitor, after which Alexander, Johnson, Petitioner, and Zimmerman walked to the back of the visitor's room to talk. When a corrections officer at the front gate noticed a problem with the counterfeit identification cards, he sent Belnavis and Rock to a deputy's office for further investigation.⁶ On the way to the office, Belnavis feigned an asthma attack, and the two co-conspirators left the prison, aborting the escape. (Id. at 6.)

b. The May 6, 2003 Attempt

Belnavis acquired a motorcycle to assist with the second escape attempt. Dubose agreed to ride the motorcycle to Sing Sing, dressed as a corrections officer, and enter the prison with extra uniforms, badges, identification cards, pepper spray, and a loaded weapon, in exchange for $15,000. On May 6, 2003, Dubose rode the motorcycle to Ossining, where he met up with Belnavis, Johnson, and Alexander. Belnavis gave Dubose a duffle bag containing uniforms, identification cards, badges, pepper spray, and at least one loaded handgun. Though Dubose changed into the uniform and strapped a weapon to his person, he did not attempt to enter the facility because he had come too late to blend in with corrections officers arriving for a shift change. With the escape plan again aborted, Alexander and Dubose rode the motorcycle to a residential area and left it chained to a post overnight. (Id.)

c. The May 7, 2003 Attempt

Dubose, Alexander, Belnavis, and Johnson returned to Ossining the following day. When Dubose and Alexander arrived at the spot where they had left the motorcycle, they encountered a police officer who was waiting for a tow truck. At this point the conspirators approached the officer, provided their real identification cards, and told him that the motorcycle had been chained up overnight because it had broken down.⁷ The officer recorded its identification information but did not impound the motorcycle. (Id. at 7.)

After changing into the corrections officer uniform, Dubose rode the motorcycle to the prison. Alexander, Belnavis, and Johnson waited in cars in the parking lot at Sing Sing while additional conspirators arrived to visit Petitioner and Zimmerman. Dubose, carrying the duffel bag containing contraband and at least one loaded weapon, entered the prison with a group oflegitimate corrections officers during a shift change. Officers at the gate noticed a problem with Dubose's badge and sent him to see a deputy. Dubose claimed he had been transferred from Fishkill Correctional Facility but subsequently fled the prison on the pretext of using the restroom, leaving behind the contents of the duffel bag and the counterfeit identification items. Belnavis, Johnson, and Dubose drove away by car while Alexander rode the motorcycle out of Ossining. According to Dubose, Belnavis paid him $2,500 for his efforts. (Id.)

Upon realizing that the identification items were fake and that Dubose had exited the facility, the corrections staff opened the duffel bag to discover the extra uniforms, badges, and pepper spray. (Id.) Local police were alerted, and, after recognizing the photograph used on Dubose's counterfeit identification card, the officer who had spoken to Dubose and Alexander about the motorcycle provided the state police with the names and contact information that the co-conspirators had given. (Id. at 7-8.)

At trial, the Government sought to corroborate the testimony of these accomplices with, inter alia, log books and inmate frisk logs showing that Petitioner and Zimmerman each arrived at the visitor's room at approximately the same time on April 24, May 6, and May 7, 2003, which corresponded to the accomplice testimony concerning the three escape plans; phone records showing calls that matched the testimony about calls to and from a cell phone that Wilson smuggled into the prison for use by Petitioner and Zimmerman; receipts from a law enforcement supply store; the Ossining police officer's notebook containing the names and contact information of Dubose and Alexander; a taped telephone conversation during which Belnavis and Wilson discuss a law enforcement supply store with Zimmerman; the duffle bag abandoned inside Sing Sing after Dubose aborted the May 7, 2003 attempt; the testimony ofSantiago, a non-accomplice, about Petitioner's queries and other statements; and ammunition recovered from Belnavis's vehicle after her arrest. (Id. at 8.)⁸

2. Petitioner's Case

Petitioner did not call witnesses, present evidence, or testify at trial. His defense focused on discrediting the accomplices by emphasizing their favorable cooperation deals with the prosecution. Petitioner's trial counsel argued that his client had no knowledge of the attempted escapes and stressed that the accomplices were friends of Zimmerman, not Petitioner. (Id.)

3. Verdict, Motion to Set Aside the Verdict, and Sentence

On April 8, 2005, the jury found Petitioner guilty of three counts of attempted escape in the first degree, one count of promoting prison contraband in the second degree, and one count of conspiracy in the fourth degree. The jury acquitted him of the remaining counts. Petitioner, proceeding pro se, then moved to set aside the verdict, pursuant to § 330.30 of N.Y. Criminal...