Bentley v. Scully
| Decision Date | 01 December 1994 |
| Docket Number | D,No. 2429,2429 |
| Citation | 41 F.3d 818 |
| Parties | Roosevelt C. BENTLEY, Petitioner-Appellee, v. Charles SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent-Appellant. ocket 94-2290. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert T. Johnson, Dist. Atty., Bronx County, for appellant.
Randall D. Unger, Kew Gardens, NY, for appellee.
Before: WINTER, LEVAL, Circuit Judges, and SKRETNY, District Judge. *
Respondent Charles Scully, Superintendent of New York's Greenhaven Correctional Facility (the "State") appeals from a judgment entered in the United States District Court for the Southern District of New York, Sweet, J., granting petitioner Roosevelt Bentley's ("petitioner" or "Bentley") petition for a writ of habeas corpus, 851 F.Supp. 586. Appellant seeks reversal of the district court's decision on several grounds. Specifically, appellant argues that the petition should be denied (1) under the abuse of writ doctrine, (2) because the district court erred in finding that petitioner's claim of prosecutorial misconduct was not procedurally barred, and (3) because the district court improperly determined that the prosecutor's statement during summation deprived petitioner of a fair trial. Finding that the trial error asserted by petitioner was harmless under the standard of Brecht v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), reh'g denied, --- U.S. ----, 113 S.Ct. 2951, 124 L.Ed.2d 698 (1993), we vacate the judgment of the district court and remand with directions to dismiss the writ for the reasons set forth below.
The facts of this case are detailed in the opinion of the New York State Supreme Court, Appellate Division, First Department, ("Appellate Division") which considered petitioner Bentley's direct appeal of his trial court conviction. People v. Bentley, 112 A.D.2d 109, 492 N.Y.S.2d 381 (1st Dept.1985), appeal denied, 66 N.Y.2d 761, 497 N.Y.S.2d 1034, 488 N.E.2d 120 (1985). We reiterate only the facts necessary to address the issues before this Court.
On November 15, 1979, cab driver Joseph Bunyarko ("Bunyarko") was dispatched by radio to pick up passengers at 1020 Grand Concourse, a Bronx apartment building. Upon his arrival shortly after midnight, a man and woman walked from the building towards the passenger door of the cab. Bunyarko recognized the woman, a regular customer named Wanda, but did not recognize the man with her. As they approached the cab, Bunyarko said "Hello." In response, the man asked, "Is your name Joe, are you car 84?" Bunyarko leaned across the cab, rolled down the passenger door window, and responded affirmatively. When Bunyarko motioned as if he were going to roll up the window, the man commanded, "Don't touch the window or I'll blow your head off." A moment later the man pointed a gun and fired a shot at the cab, striking the passenger door.
Bunyarko immediately drove off. As he turned the corner of the street, Bunyarko observed two police officers in a patrol car. He reported the shooting incident to Police Officer John Kahmain and his partner. The officers then accompanied Bunyarko back to the scene. At the 1020 Grand Concourse address, Officer Kahmain approached the doorman and, following a brief conversation, proceeded upstairs with his partner and Bunyarko to apartment 16V.
When they reached the apartment, Officer Kahmain announced he was a police officer and began knocking and ringing the bell. The door's peephole opened briefly, but then shut. There was no further response from the occupants of the apartment for approximately ten minutes, at which time the door opened. Officer Kahmain went inside and observed four individuals: a woman, a child, and two men, one of whom was petitioner Bentley. Bentley was overheard talking to his attorney on the telephone about search warrants. The other man in the apartment was Bentley's son. Bunyarko quickly identified Bentley as the shooter, and Bentley was arrested. The other individuals in the apartment were then allowed to leave. Officer Kahmain escorted Bentley downstairs in handcuffs. Once outside, the police officers discovered a spent bullet casing from a nine The next morning, Police Officer Larry Coyle and his partner were assigned to safeguard apartment 16V. At approximately 8:30 a.m., Officer Coyle searched the roof of the garage directly beneath Bentley's apartment, where he discovered a burst paper bag containing (1) two plastic bags of nearly four ounces of heroin, (2) three guns, one of which was a fully loaded nine millimeter pistol, and (3) ammunition for the guns.
millimeter pistol on the sidewalk in front of the building. They also noted a bullet hole in the cab's door. Bunyarko accompanied the officers to the police station, where the door to the taxi cab was disassembled and a lead bullet fragment was recovered.
The officers took the items to the police station for examination. Police Officer Robert Seebach, assigned to the New York Police Department Ballistics Unit, tested the three guns and determined that only the nine millimeter pistol was operable. He noted that the inoperable condition of the other two pistols was consistent with being damaged by a fall from a significant height. In addition, Seebach noted that while only the two damaged pistols showed signs of having been fired, the condition of the nine millimeter pistol was consistent with that of a gun which had been cleaned following discharge.
Another member of the New York Police Department Ballistics Unit, Detective George Simmons, examined the bullet casing found on the sidewalk outside Bentley's apartment building and the bullet fragment recovered from inside the door panel of Bunyarko's taxi cab. Although the fragment found in the car door was too deformed to compare, Simmons determined that the bullet casing found on the sidewalk had been fired from the nine millimeter pistol recovered from the garage roof. Finally, New York Police Department Chemist Joseph Diep examined the white powder in the plastic bags and on the guns recovered by Officer Coyle. He concluded that the powder was approximately 3 1/2 ounces of heroin.
On January 9, 1980, a Bronx County grand jury returned an indictment charging Bentley with (1) attempted murder in the second degree, (2) criminal possession of a weapon in the second degree and fourth degree, (3) reckless endangerment in the first degree, and (4) criminal possession of a controlled substance in the second degree. The State introduced detailed evidence at trial concerning the ballistics of the alleged weapon, the drugs recovered from the garage rooftop, and Bunyarko's eyewitness identification of Bentley as his assailant. During summation the prosecutor made the following comments:
He pops a shot at him and tries to kill him. And then he realized how stupid and he runs upstairs and that's when the thinking starts setting in. Remember the testimony Joseph said that one of them was on the phone to the lawyer about not searching the apartment. Very smart.
Did you notice that the gun, the nine millimeter had no powder residue, no discharge? He cleaned it. Very smart. The other guns, the two of them had evidence of discharge. Isn't that curious? The other two guns are dirty. Yet this one particular gun is cleaned. That's another thing I thought counsel might hit on. How do you know this gun was fired? It was recovered fully loaded, therefore it couldn't have been fired? Surprised he didn't mention that. Roosevelt had a lot of nine millimeter ammunition. He reloaded the gun. So when it was found it was no evidence of discharge. There was no round of ammunition missing.
Very intelligent act and very deliberate; the very same type of man is calling to a lawyer while the cops are knocking on the door. The same type of man that would jettison everything from the apartment because then you can come in and say hey, nobody saw me with the drugs. How can you accuse me of this? No one saw me drop the drugs.
(emphasis added).
On February 17, 1982, a jury found Bentley guilty of attempted murder in the second degree and criminal possession of a controlled substance in the second degree. On October 29, 1982, New York State Supreme Court, Bronx County, rendered a judgment of conviction against Bentley and sentenced him to two concurrent prison terms of 12 1/2 to 25 years, both terms consecutive with a previous
federal prison sentence. Bentley has since made several attempts in both state and federal court to have his conviction set aside.
The district court opinion details the extensive procedural history of this case in the state courts. Bentley v. Scully, 851 F.Supp. 586 (S.D.N.Y.1994). The issues presented on this appeal all relate to whether statements made by the prosecutor during summation violated Bentley's Sixth Amendment right to assistance of counsel, depriving him of a fair trial.
On November 9, 1982, Bentley filed a notice of appeal seeking review of the trial court's October 29, 1982, denial of his motion to dismiss the indictment on speedy trial grounds. The Appellate Division granted Bentley leave to appeal and consolidated the appeal with Bentley's appeal from the judgment of conviction. On July 25, 1985, the Appellate Division modified the trial court's judgment. Specifically, the court affirmed the second degree attempted murder charge and reversed the conviction for criminal possession of a controlled substance. The Appellate Division rejected Bentley's claim that his conviction be set aside in its entirety because of the prosecutor's references in summation to the fact that Bentley had been on the telephone with his attorney when the police entered his apartment.
Bentley has challenged his conviction in federal court on numerous and complex grounds. He has filed five federal habeas corpus petitions. He filed the first three in May 1982, April 1986,...
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