Abraham v. Lee
| Decision Date | 17 July 2014 |
| Docket Number | 13 Civ. 2525 (RWS) |
| Parties | CURTIS ABRAHAM, Petitioner, v. WILLIAM LEE, Superintendent, Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
PRO SE
CURTIS ABRAHAM
Green Haven Correctional Facility
ATTORNEYS FOR RESPONDENT
ROBERT T. JOHNSON
District Attorney
Bronx County
By: Peter D. Coddington, Esq.
Kyonia L. Whetstone, Esq.
Petitioner Curtis Abraham ("Abraham" or "Petitioner") has petitioned for a writ of habeas corpus relief pursuant to 28 U.S.C. § 2254, alleging that he was deprived of effective assistance of counsel at trial and during his resentencing hearing. Petitioner further alleges that he was denied a speedy trial and his sentence of 20 years' imprisonment, with a concurrent term of 2 to 4 years' imprisonment, for his convictions of Manslaughter in the First Degree and Attempted Assault in the Second Degree, respectively, constitutes cruel and unusual punishment in violation of his Eighth and Fourteenth Amendment rights.
Based on the conclusions set forth below, Petitioner's motion is denied.
Petitioner's state custody arises from a judgment of conviction entered on November 15, 2007, in the Bronx County Supreme Court of the State of New York following a jury trial of Manslaughter in the First Degree (New York Penal Law ("Penal Law") § 125.20[1]), and Attempted Assault in the Second Degree (Penal Law §§ 110/120.05[2]). The court sentenced Petitioner as a secondviolent felony offender to a determinate term of 20 years' imprisonment and a concurrent term of 2 to 4 years' imprisonment, respectively.
On June 28, 2007, the Appellate Division unanimously affirmed Petitioner's conviction but remanded for resentencing due to the prosecution's failure to file a predicate felony statement. See People v. Abraham, 66 A.D. 3d 412 (1st Dep't 2009).
In an Order dated February 23, 2010, the New York Court of Appeals denied Petitioner's application for modification of the judgment of his convictions. People v. Abraham, 14 N.Y.3d 769 (2010).
On April 22, 2010, the Bronx County Supreme Court of the State of New York resentenced Petitioner to a term of 20 years' imprisonment on the msanlaughter conviction, and a concurrent term of 2 to 4 years' imprisonment on the attempted assault conviction. Whetstone Decl. ¶ 6.
In a Decision and Order dated March 23, 2011, the Bronx County Supreme Court denied Petitioner's motion (the "CPL 4 4 0 Motion," the court the "CPL 440 Court") to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL")§ 440.10, seeing "no reason to change that conclusion or otherwise modify the conviction." People v. Abraham, 30 Misc. 3d 1240(A), at *2 (Bronx Co. Sup. Ct. 2011).
On August 4, 2011, the Appellate Division denied Petitioner's application for leave to appeal from an order of the Bronx County Supreme Court, stating that there was no questions of law or fact that ought to be reviewed by that court. Whetstone Decl. Ex 7. Subsequently, Petitioner filed a brief with the Appellate Division asserting that his sentence should be reduced and ineffective assistance of counsel. Id., Exs. 8-10. On January 26, 2012, the Appellate Division unanimously affirmed Petitioner's conviction. People v. Abraham, 91 A.D.3d 555 (1st Dep't 2012).
In a letter dated March 2, 2012, Petitioner asserted that his sentence constituted cruel and unusual punishment when compared to the sentences of his co-defendants and sought leave to the New York Court of Appeals following the Appellate Division's affirmance of his judgment of conviction. Whetstone Decl. Exs. 11, 12. On April 16, 2012, the New York Court of Appeals denied Petitioner's application for leave. People v, Abraham, 18 N.Y.3d 991 (2012).
Petitioner submitted the instant petition on April 3,2013. The Petitioner's motion was heard on submission and marked fully submitted on January 15, 2014.
Petitioner's underlying conviction arises out of the shooting and killing of Tsishon Freeman ("Freeman") and injury of Freeman's brother, Delshawn Walker ("Walker").
A. The Underlying Shootings
Petitioner's conflict with Freeman stemmed from Petitioner's relationship with Doreen Clyde ("Clyde"). Petitioner and Clyde dated for a period of time, but Petitioner's incarceration for an incident unrelated to the underlying shootings led Petitioner and Clyde to decide that Clyde was free to date other people while Petitioner was "away". Whetstone Decl. Ex. 9 at 3. During Petitioner's absence, Freeman became romantically involved with Clyde. Resp. Br. at 1. When Petitioner returned, Clyde ended her relationship with Freeman upon Petitioner's request. Id. at 1-2.
On September 17, 2005, Petitioner saw Freeman inside Clyde's apartment building at the Gun Hill Houses housing projectin the Bronx. Id. at 2. Freeman and Clyde were speaking out in the hallway in front of Clyde's ninth-floor apartment when Petitioner arrived. Whetstone Decl. Ex. 9 at 4. After leaving and returning to stare at Clyde and Freeman several times, a ten-minute verbal altercation ensued between Petitioner and Freeman. Id. at 5. The argument caught the attention of Walker and Freeman's friend, Raymond Cruz ("Cruz"), who approached Freeman and Petitioner. At this time, Petitioner walked away and went into a stairwell. Resp. Br. at 2.
Half an hour later, Freeman, Walker and Cruz boarded an elevator to leave the building. The elevator stopped on the second floor, and Freeman, Walker and Cruz stepped outside briefly to survey the surroundings. Whetstone Decl. Ex. 9 at 5. When they stepped back into the elevator, Petitioner, James Griffin ("Griffin") and Lamont Williams ("Williams") boarded the elevator. Id. The two groups started fighting, and Petitioner, Griffin and Williams started shooting at Walker, Freeman and Cruz. Id. Cruz, who was armed, returned fire. Freeman was shot six times and died. Walker was shot once in his left side, twice in his arm and upper shoulder, and once in his head and survived. Resp. Br. at 2.
b. The Trial Petitioner, Griffin and Williams were jointly indicted for, among other crimes, the intentional murder of Freeman, the attempted murder of Walker, and the attempted assault of Cruz. Whetstone Decl. Ex. 1 at 3. Griffin and Williams each pled guilty to Manslaughter in the First Degree and received sentences of 10 years' and 8 years' imprisonment, respectively. Whetstone Decl. ¶ 9. Petitioner decided to proceed to trial.
At Petitioner's trial, Walker testified and identified Petitioner as one of the shooters. Resp. Br. at 2; T. 239-40. Walker was familiar with Petitioner as he would often go to Clyde's apartment to see his girlfriend Stacy, Clyde's cousin, who lived with Clyde. Id.
During the trial, Detective Anthony Gonzalez ("Detective Gonzalez") testified that he interviewed Laaiqua Jones ("Jones") who informed him that Williams came to her apartment with another individual, that Williams had a gunshot wound to his hands; that Jones and the other individual retrieved a bandana, baseball cap and ballistics evidence from the crime scene; and that Williams left the apartment with this other individual. Whetstone Decl. Ex. 9 at 7; T. 764-65. The individual not named at trial was Petitioner; Detective Gonzalez was instructed to not name Petitioner in his testimony. Resp. Br. at 13 n.8.
On November 15, 2007, the jury acquitted Petitioner of Murder in the Second Degree and Attempted Murder in the Second Degree, but convicted Petitioner of Manslaughter in the First Degree and Attempted Assault in the Second Degree. Resp. Br. at 2.
c. Subsequent Appeals
On January 9, 2009, Defendant, by his assigned counsel, filed a brief with the Supreme Court of the State of New York, Appellate Division, First Department ("Appellate Division"), claiming that: (a) the trial court's missing witness charge was erroneous, (b) the proof of his guilt was insufficient, (c) defendant's sentence was excessive, and (d) the trial court neglected to adj udicate Petitioner on a predicate felony information. Whetstone Decl. ¶ 5; Ex. 1. In a decision dated June 28, 2007, the Appellate Division unanimously affirmed Petitioner's conviction. People v. Abraham, 66 A.D.3d 412 (1st Dep't 2009). The court found as follows:
We reject [Petitioner's] challenges to the sufficiency and weight of the evidence supporting his attempted assault conviction (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence supports the inference that when [Petitioner] and the codefendants opened fire on the homicide victim and his companions in a small enclosed space, [Petitioner] intended to shoot all ofthem.
[Petitioner's] arguments concerning the content of the court's missing witness charge are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The charge conveyed the proper standards and its content was appropriate to the case. In any event, any error in the language employed was harmless.
Since the People failed to file a predicate felony statement, [Petitioner] was improperly adjudicated a second felony offender, and he is entitled to a remand for a proper adjudication and sentence. Since the defective second felony offender adjudication may have affected [Petitioner's] sentence on both the manslaughter and attempted assault convictions, we remand for a plenary resentencing.
In a letter dated October 20, 2009, Petitioner sought leave to appeal the Appellate Division's decision. Petitioner sought review of all of the issues raised in his Appellate Division brief, including the state and federal constitutional issues, and sought to hold his application in abeyance until after his resentencing. Whetstone Decl. Ex. 3. In an Order dated February 23, 2010, the New York Court of Appeals ("Court of Appeals"), denied Petitioner's application. People v. Abraham, 14 N.Y.3d 769 (2010).
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