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Denis v. Lamanna

United States District Court, S.D. New York
Mar 17, 2021
18-CV-7371 (AT) (KNF) (S.D.N.Y. Mar. 17, 2021)

Opinion

18-CV-7371 (AT) (KNF)

03-17-2021

ROBERT DENIS, Petitioner, v. JAMIE LAMANNA, Superintendent of the Green Haven Correctional Facility, Respondent.


REPORT AND RECOMMENDATION

KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE

Robert Denis (“Denis”), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that his: (1) “right to a fair trial and due process was denied since the weight of the evidence did not support the jury's rejection of justification”; (2) “right to due process was abridged during the pre-trial stage when the court denied petitioner's request for a Dunaway hearing to challenge the legality of his arrest and the fruits of said arrest”; and (3) “right to the effective assistance of counsel was denied when trial counsel received discovery information pertaining to his arrest and failed to move to reargue the trial court's denial of Dunaway hearing.” On direct appeal, the state court found, in pertinent parts:

The verdict was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). There is no basis for disturbing the jury's credibility determinations. The evidence disproved defendant's justification defense beyond a reasonable doubt. The court correctly denied defendant's motion for a Dunaway hearing on the ground that it was not supported by sufficient factual allegations, given the information available to defendant (see People v Lopez, 5 N.Y.3d 753, 801 N.Y.S.2d 245, 834 N.E.2d 1255 [2005]; People v Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993]). Defendant's motion only addressed his allegedly innocent behavior at the time of his arrest, although he was well aware that he had been arrested for an earlier homicide. Additionally, we conclude that at a hearing on defendant's other suppression claims, the hearing court properly exercised its discretion in declining defendant's request to expand the hearing to include the issue of probable cause.
People v. Denis, 128 A.D.3d 543, 543-44, 10 N.Y.S.3d 34, 35 (2015).

Leave to appeal from affirmance of the conviction was denied. See People v. Denis, 27 N.Y.3d 964, 36 N.Y.S.3d 625 (2016). The petitioner's motion pursuant to New York Criminal Procedure Law (“CPL”) § 440.10, asserting ineffective assistance of counsel in failing to move for reconsideration of the court's denial of his request for a Dunaway hearing, was found procedurally barred and without merit because “Defendant's conclusory allegations regarding his trial counsel's alleged ineffectiveness do not suffice to rebut the ‘presum[ption] that counsel acted in a competent manner and exercised professional judgment in not [again] pursuing a [Dunaway] hearing.'” The respondent opposes the petition.

PETITIONER'S CONTENTIONS

Denis asserts that when the jury at his trial rejected the murder and attempted murder charge, “it was then inconsistent for this same jury to then find against the justification. This is against the weight of the evidence and a deprivation of due process.” According to Denis:

Petitioner initially denied involvement, but ultimately explained his role of self-defense - that he grabbed one of the victim's gun (Story) as he was reaching for it. The group (including Story) had formed around him and Petitioner feared for his life. Besides Petitioner's account, there is evidence supporting self-defense and justification. Garcia testified that Story had a gun in his possession during the incident. Pearson was the train's operator, he testified that he heard words to the effect of “He's not going to shoot; it's not that serious; I ain't gonna shoot nobody.'” This suggests that the shooter had no intention of firing the gun and that someone other than the shooter accelerated the incident from “I ain't gonna shoot nobody, ” to a young man losing his life and others being shot. Petitioner was in fear of his life and the evidence supported justification. There is no other evidence that comes close to negating justification. In light of the acquittal of the top charge and evidence to support justification, this court should reverse the conviction and dismiss the indictment. Petitioner's right to due process and a fair trial were violated.

Concerning his due process claim, Denis contends that he was arraigned on an indictment on August 20, 2007, when the prosecutor provided notices pursuant to CPL § 719.30 in a Voluntary Disclosure Form (“VDF”), stating that the crime took place “at the #5 train, Dyre Avenue Station in the Bronx at 2:30am on August 12, 2007.” Denis asserts:

The VDF alleges that Petitioner made six statements to law enforcement between August 13, 2007 at 2:02 am to August 13, 2007 at 7:50 pm. Petitioner denied being in the Bronx at the time of the incident in the first statement but acknowledged that he committed the shooting in the subsequent ones. In accepting responsibility, Petitioner maintained that he grabbed the gun from Rayquan Story and his intent was to use it to scare Rayquan and his friends away; and that he tossed the gun away in some bushes. The VDF gave notices of photo array identification made by multiple witnesses at ¶ 0:00 pm on August 12, 2007; and a line up identification made on August 13, 2007 at l:53 pm. Petitioner was arrested at 7:00 pm August 12, 2007 in Co-op city. This time preceded the statements and identifications mentioned above. Sufficient information or facts were never supplied to Petitioner as to how the police formed the probable cause necessary to arrest him. Petitioner was surrounded by police with guns drawn while he was out on the street, not acting suspicious or indulging in criminal activity. Petitioner sought to challenge and throw out these identifications and statements as fruits of an illegal arrest within his omnibus motion. Same requested a Huntley, Dunaway and Wade hearing. In opposing petitioner's omnibus motion, the People did not address the request for a Dunaway hearing. The court granted a Huntley and a Wade Hearing but denied the Dunaway Hearing and stated that Petitioner failed to alleged [sic] sworn allegation to support the motion.

Denis maintains that the court “refused to expand [the hearing] to include Dunaway issue.”

During the Huntley/Wade hearing before Hon. Peter Benitez the People reminded the court that the motion court (Mogulescu, J.) had precluded a Dunaway hearing. The court chose to abide by the motion court's decision. The hearing court also denied Petitioner's oral application for a Dunaway hearing made in the midst of detective Peter Mooney's examination at the Huntley/Wade hearing. In making this (in-hearing) application, defense counsel stated that at the time of filing of the omnibus motion, the defense had not received discovery but had been directed by the court to make motions. That after hearing detective Mooney's sequence of events, there was no reason to take petitioner into custody: no one had seen petitioner's photo prior to his arrest. The People countered that the defense had received discovery by February 2018 and should have moved to reargue the denial of that branch of the omnibus motion. The hearing court analyzed a piece of discovery - a Myspace photograph of petitioner and three other young men. The photo bore a notation that it had been retrieved by someone with knowledge of the incident and retrieved the photo for a relative of the deceased, who in turn forwarded it to police. The court concluded that this photo was likely the basis for petitioner's arrest. While questioning the photo's legal sufficiency the hearing court also found that counsel should have used it to renew or reargue that branch of the omnibus motion, but did not.
In connection with his ineffective assistance of counsel claim, Denis asserts:
Defense counsel filed an omnibus motion and requested, inter alia, a Dunaway hearing to call into question if the police had probable cause to arrest petitioner. Lack of probable cause to arrest petitioner would lead to the suppression of statements by petitioner and his identification by witnesses as it was the tainted fruit of an illegal arrest. The People opposed the omnibus motion but failed to disclose favorable facts surrounding Petitioner's arrest in the form of a Myspace.com photo which formed the basis of the police arresting petitioner. The court subsequently denied the branch of the motion requesting the Dunaway hearing based on the court's position that there were insufficient facts to support petitioner's assertion. Subsequent to the court's denial, the People disclosed discovery material including the MySpace.com photograph. Counsel failed to move to reargue the denial of the Dunaway hearing. This act of incompetence meets the criterion set forth in People v. Baldi (54 N.Y.2d 137, (1984) [sic]); and Strickland v. Washington (466 U.S. 668, (1984)). Based on counsel's ineptitude, the People was able to present petitioner's statements to secure his conviction. The statements should have been suppressed as the fruits of an illegal arrest.

RESPONDENT'S CONTENTIONS

The respondent contends that the weight of the evidence claim is not cognizable on habeas corpus review because it is a state-law claim, and ample evidence supported the verdict and the jury's rejection of the justification defense. According to the respondent,

[Lawrence (Larry)] Garcia testified that after petitioner and his group of friends left the train, he heard the words “fuck that” emanate from the middle doors and then he observed petitioner extend his hand through those same doors and fire a gun multiple times into the train (Garcia: T. 332-335, 378383, 397-398). Garcia, [Travonne] Thomas, and [Joseph] Lucombe all testified that no member of their group had a gun the day of the shooting. Further, Thomas and Lucombe testified that they did not see petitioner take a gun from anyone in their group of friends and that nobody rushed or attacked petitioner (Garcia: T. 403; Thomas: T. 93, 120, 125). Similarly, two employees of the New York City Transit Authority testified that they did not observe anyone on the train threaten or attack the shooter ([Solomon] McNellage: T. 519-520; [Jamar] Pearson: 843-846). Further, one of the employees testified that after the shooting, the shooter walked away “like there was nothing to it” (McNellage: T. 519-520). Additionally, when petitioner was first questioned by the police, he claimed he was never in the Bronx. It was only after he was confronted with the information that he was implicated in the shooting that he claimed that he took the gun from someone else on the train and only fired the gun after being rushed. The jury could, thusly, have rejected petitioner's self-serving statement.... [E]ven if petitioner said “I ain't gonna shoot nobody, ” and assuming, arguendo, that this suggests a reluctant shooter, it has little bearing on whether petitioner reasonably believed that the use of deadly force was necessary. Indeed, if attributed to defendant, a plausible inference to draw from this statement is that he did not believe that deadly force was necessary. Moreover, the jury could have reasonably rejected any inference of reluctance drawn from this overheard statement given the abundant testimony that nobody attacked or rushed petitioner.

The respondent contends that the petitioner was afforded the opportunity to litigate fully his Fourth Amendment claim before the state courts, including on appeal; thus, his challenge to the state court's denial of his Dunaway motion is not cognizable on habeas corpus review. Moreover, under New York law, the court denied properly the petitioner's mid-hearing request to expand the scope of the pre-trial hearing to include a Dunaway hearing.

The respondent asserts that the state court's decision rejecting the petitioner's ineffective assistance of counsel claim was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Like in the state court, “in the instant petition, petitioner makes only the unsupported and conclusory statements that counsel's failure to renew or reargue the Dunaway motion led to his conviction because the prosecution “was able to present petitioner's statements to secure his conviction” and that “[t]he statements should have been suppressed.” However, he fails to present any factual and legal support for his conclusory assertions. According to the respondent,

the record reveals that trial counsel zealously represented petitioner. Before trial, counsel made the proper motions and successfully obtained Huntley and Wade hearings, and made a determined, though ultimately unsuccessful, effort through oral arguments before the hearing court to procure a Dunaway hearing as well. Significantly, at trial, counsel successfully argued that defendant did not intend to kill Rayquan Story or the other victims, and secured defendant's acquittal on the top charges (one count of murder and four counts of attempted murder) despite the compelling testimony of the eyewitnesses.

Moreover, the petitioner cannot establish that a renewed motion by counsel would have been successful or that the verdict would have been different had a suppression motion been granted, since “[t]here was overwhelming evidence of petitioner's guilt in addition to the petitioner's statements.”

PETITIONER'S REPLY

In connection with his ineffective assistance of counsel claim, the petitioner asserts that “[l]ack of probable cause to arrest petitioner would lead to the suppression of statements by petitioner and his identification by witnesses as it was the tainted fruit of an illegal arrest.” After the court's denial of the motion for a Dunaway hearing, the prosecutor disclosed favorable evidence and counsel failed to move to reargue the denial of the Dunaway hearing, which shows the act of incompetence that meets the Strickland standard. As it concerns the due process claim based on the court's denial of a Dunaway hearing, the petitioner asserts that the court concluded that “a Myspace photograph of petitioner and three other young men” was “likely the basis for petitioner's arrest. While questioning the photo's legal sufficiency the hearing court also found that counsel should have used it to renew or reargue that branch of the omnibus motion, but did not.”

LEGAL STANDARD

An 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (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).

“[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046 (1976). “[R]eview of fourth amendment claims in habeas petitions would be undertaken in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990). An erroneous evidentiary ruling does not rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus unless the petitioner can show that the error “constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.' Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941).” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871 (1974). To obtain relief on an ineffective assistance of counsel claim, a petioner, such as Denis, must establish that his counsel's performance was: 1) deficient, such that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance, ” Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066; and (2) prejudicial so “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. at 2064.

APPLICATION OF LEGAL STANDARD

Weight of the Evidence Claim

Petitioner's claim that the weight of the evidence did not support the jury's rejection of his justification defense is not cognizable on habeas review because it is a state-law claim grounded in CPL § 470.15(5). See Lewis, 497 U.S. at 780, 110 S.Ct. at 3102. To prevail on a claim that the verdict was not supported by sufficient evidence, the petitioner must establish that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 279192, 61 L.Ed.2d 560 (1979). The petitioner did not raise in the state court a federal constitutional claim that the verdict was not supported by sufficient evidence. Although the petitioner styled his weight of the evidence claim as a denial of the “right to a fair trial and due process . . . since the weight of the evidence did not support the jury's rejection of justification, ” his argument is that the weight of the evidence supported his justification defense. Even assuming that the petitioner asserts an insufficient evidence claim, he failed to show any factual and legal basis to satisfy his burden of showing that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 324, 99 S.Ct. at 2791-92. Accordingly, habeas corpus relief is not warranted on the petitioner's claim that his “right to a fair trial and due process was denied since the weight of the evidence did not support the jury's rejection of justification.”

Due Process Claim

The petitioner does not assert that New York did not provide corrective procedures to redress his Fourth Amendment claim or that he was prevented from using the state mechanism because of an unconscionable breakdown in the underlying process. The petitioner's claim that he was denied due process by the court's denial of his request for a Dunaway hearing is not cognizable on habeas corpus review because New York provided a procedure and opportunity for the petitioner to litigate fully his Fourth Amendment claim. See Stone, 428 U.S. at 482, 96 S.Ct. at 3046. Accordingly, habeas corpus relief is not warranted on the petitioner's claim that his “right to due process was abridged during the pre-trial stage when the court denied petitioner's request for a Dunaway hearing to challenge the legality of his arrest and the fruits of said arrest.”

Ineffective Assistance of Counsel Claim

The state court denied the petitioner's ineffective assistance of counsel claim based on counsel's failure “to move to reargue the trial court's denial of Dunaway hearing” on the merits because “Defendant's conclusory allegations regarding his trial counsel's alleged ineffectiveness do not suffice to rebut the ‘presum[ption] that counsel acted in a competent manner and exercised professional judgment in not [again] pursuing a [Dunaway ] hearing.'” Other than making the conclusory assertion that counsel's “act of incompetence meets” the Strickland standard, the petitioner failed to show that any factual and legal bases exist upon which to find that the state court's decision on his ineffective assistance of counsel claim was contrary to or an unreasonable application of the Strickland standard. Upon review of the record and the parties' arguments, the Court finds that the state court's decision on the petitioner's ineffective assistance of counsel claim was not contrary to or an unreasonable application of Strickland. Accordingly, habeas corpus relief is not warranted on the petitioner's claim that his “right to the effective assistance of counsel was denied when trial counsel received discovery information pertaining to his arrest and failed to move to reargue the trial court's denial of Dunaway hearing.”

RECOMMENDATION

For the foregoing reasons, I recommend that the petition be denied.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court. Any requests for an extension of time for filing objections must be directed to Judge Analisa Torres. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).

The Clerk of Court is directed to mail a copy of this Report and Recommendation to the petitioner.


Summaries of

Denis v. Lamanna

United States District Court, S.D. New York
Mar 17, 2021
18-CV-7371 (AT) (KNF) (S.D.N.Y. Mar. 17, 2021)
Case details for

Denis v. Lamanna

Case Details

Full title:ROBERT DENIS, Petitioner, v. JAMIE LAMANNA, Superintendent of the Green…

Court:United States District Court, S.D. New York

Date published: Mar 17, 2021

Citations

18-CV-7371 (AT) (KNF) (S.D.N.Y. Mar. 17, 2021)