Shortell v. Kickbush

RICHARD SHORTELL, Petitioner, v. SUSAN KICKBUSH, Superintendent, Respondent.

No. 9:20-CV-0062 (GLS/DJS)

United States District Court, N.D. New York

August 5, 2021

RICHARD SHORTELL Petitioner Pro Se

HON LETITIA JAMES JAMES F. GIBBONS, ESQ. DENNIS A. RAMBAUD, ESQ. Assistant Attorneys General Attorney General for the State of New York Attorney for Respondent

REPORT-RECOMMENDATION AND ORDER ^[1]

DANIEL J. STEWART United States Magistrate Judge

Pro se Petitioner Richard Shortell was convicted upon jury verdict of grand larceny in the third degree, criminal possession of stolen property in the third degree, aggravated driving while intoxicated, driving while intoxicated refusing to submit to breath screening, a registration plate display violation, operating an uninspected motor vehicle and operating an unregistered motor vehicle. State Court Record (“SR.”) at pp. 638-41;^[2] Dkt. No. 1, Petition (“Pet.”) at p. 10.^[3] He was sentenced to an aggregate, indeterminate term of imprisonment of three to six years. SR. at pp. 117-22. Petitioner presently seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on the ground that the Prosecution failed to prove that he intended to deprive another person of their property. Pet. at p. 6. Respondent has filed a Memorandum of Law in Opposition to the Petition. Dkt. No. 8. Petitioner submitted a Traverse. Dkt. No. 20.^[4] For the reasons that follow, this Court recommends that the Petition be denied.

I. BACKGROUND

On June 3, 2017, Petitioner, while intoxicated, went to his former place of employment, Wax On Wax Off Professional Detailing, and stole a black Dodge Ram truck owned by the Huttig Nissan dealership. SR. at pp. 430, 434-35, & 439. The truck was under the care of Michael Lilledahl, owner of Wax On Wax Off and Petitioner's former boss. SR. at pp. 430, 436, & 439. Lilledahl had a business relationship with Huttig Nissan wherein he detailed their used cars for sale. SR. at pp. 431-32. Petitioner drove the truck from the business and subsequently ended up in a ditch where he was discovered by Kayla and Shane VanWeort, who alerted the State Police. SR. at pp. 332 & 338. Trooper Kowalski arrived on the scene and spoke with the witnesses and Petitioner. SR. at pp. 364-65. Petitioner admitted to being intoxicated and to stealing the truck from his boss. SR. at p. 365. At trial, Trooper Kowalski testified that Petitioner informed him that “he was drinking vodka and that he took his boss's truck without permission.” SR. at p. 365. Kowalski also testified that when attempting to perform additional sobriety tests, Petitioner refused and stated: “Just arrest me. You got me. I'm drunk.” SR. at p. 372.

Petitioner was indicted in Clinton County Court on August 3, 2017 for grand larceny in the third degree, criminal possession of stolen property in the third degree, and various other misdemeanor crimes and traffic infractions. SR. at pp. 67-72. Petitioner pled not guilty to all charges. Pet. at p. 1. After trial, the Jury returned a guilty verdict, convicting Petitioner of, as relevant here, grand larceny in the third degree and criminal possession of stolen property in the third degree.^[5] He was sentenced to an aggregate, indeterminate term of imprisonment of three to six years. SR. at pp. 117-22. Petitioner was fined a total of $1, 425 for his misdemeanors and traffic violations, and was required to pay restitution to Huttig Nissan in the amount of $1, 789.63. SR. at pp. 117-22.

Petitioner appealed to the New York Appellate Division, Third Department. Pet. at p. 2. On June 13, 2019, the Appellate Division affirmed the judgment of the County Court, finding that the Jury could rationally find that Petitioner had the requisite intent to commit the crimes, and that his claim of ineffective assistance of counsel was “more appropriately suited for a motion under CPL article 440.” People v. Shortell, 173 A.D.3d 1364, 1366 (3d Dep't 2019). On August 26, 2019, the New York Court of Appeals issued an order denying Petitioner leave to appeal. People v. Shortell, 34 N.Y.3d 937 (2019).

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner bears the burden of proving by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234697, at *3 (S.D.N.Y. Aug. 28, 2003). A federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either:

1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).

The Second Circuit has summarized the application of the standard of review under AEDPA as follows:

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition “clearly established” when the state court ruled? 2) If so, was the state court's decision “contrary to” that established Supreme Court precedent? 3) If not, did the state court's decision constitute an “unreasonable application” of that principle?

Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362 (2000) and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). The standard of review under § 2254(d) is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). “[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

The phrase “clearly established Federal law” refers to “the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to” established Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Id. at 413. A state court decision is an “unreasonable application” of established Supreme Court precedent “if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. AEDPA also requires that “a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001).

III. DISCUSSION

Petitioner claims that there was insufficient evidence provided at trial to prove that he formed the requisite intent to deprive another person of their property. Pet. at p. 6.^[6]

A. New York's Standard for Intent

“When considering the sufficiency of the evidence of a state conviction, ‘[a] federal court must look to state law to determine the elements of the crime.'” Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)). Here, both state laws in question require specific intent. A conviction for third degree larceny requires that the person charged have the “intent to deprive another of property… [and] includes a wrongful taking, obtaining or withholding of another's property, with [the requisite] intent.” N.Y. Penal Law § 155.05 (McKinney 2021). A conviction for third degree criminal possession of stolen property requires that the person charged “knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof.” N.Y. Penal Law § 165.50 (McKinney 2021). In New York, “[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” N.Y. Penal Law § 15.05 (McKinney 2021). Furthermore, “[l]arcenous intent is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant's actions.” People v. Shortell, 173 A.D.3d at 1365 (quoting People v. Phoenix, 115 A.D.3d 1058, 1060 (3d Dep't 2014)). Petitioner alleges that the Prosecution failed to prove such intent in its case-in-chief. Pet. at p. 6. Petitioner specifically alleges that the Prosecution failed to prove that he intended to deprive the owner of his property. Pet. at p. 6.

To “deprive” another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.

N.Y. Penal Law § 155.00(3) (McKinney2021). Furthermore “[w]hen...