Bell v. Ercole

• Decision Date: 01 July 2009
• Docket Number: No. 08 CIV. 5880 VM.,08 CIV. 5880 VM.
• Citation: 631 F.Supp.2d 406
• Parties: Demetrius BELL, Petitioner, v. Robert ERCOLE, Superintendent, Respondent.
• Court: U.S. District Court — Southern District of New York

631 F.Supp.2d 406

Demetrius BELL, Petitioner, v. Robert ERCOLE, Superintendent, Respondent.

No. 08 CIV. 5880 VM.

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

July 1, 2009.

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Demetrius Bell, Stormville, NY, pro se.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Pro se petitioner Demetrius Bell ("Bell"), who is currently incarcerated at Eastern New York Correctional Facility ("ENYCF"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"). Respondent William Brown (the "State") is Superintendent of ENYCF.¹ Following a jury trial, Bell was convicted in New York State Supreme Court, Bronx County (the "Trial Court"), of Criminal Possession of a Weapon in the Second Degree, in violation of New York State Penal Law § 265.03. The Trial Court sentenced Bell to a determinate prison term of fourteen years.

In his petition, Bell asserts three claims for habeas relief: (1) there was no probable cause for his arrest and detainment, and therefore evidence obtained incident to his arrest should have been suppressed pursuant to his rights under the Fourth Amendment of the United States Constitution; (2) the Trial Court erroneously refused to instruct the jury on the defense of temporary and lawful possession of a weapon, thus violating his Sixth Amendment right to a fair trial; and (3) his fourteen-year sentence should be reduced in the interest of justice. For the reasons stated below, Bell's petition is DENIED.

I. BACKGROUND²

A. FACTUAL HISTORY

On the evening of March 8, 2003, Bell and his girlfriend, Chantaye Moore ("Moore"), attended a party at an apartment building at 620 East 137th Street in the Bronx. Upon leaving the party, Bell and Moore were followed into an elevator by a group of people which included Darius Rachel ("Rachel") and Brian McLeod ("McLeod"). When exiting the elevator into the lobby, Rachel approached Bell, engaged Bell in brief conversation, and drew a gun on Bell. Bell rushed at Rachel, the other men from the elevator rushed at Bell, and in the ensuing physical altercation, multiple shots were fired from Rachel's gun, one of which hit Rachel in the chest, ultimately killing him. Bell then obtained control of the gun and, in his words, in the heat of the moment "recklessly pulled the trigger aiming in all directions." (Hughes Decl. Ex. 1 (Brief for Defendant-Appellant, dated March 19, 2007 ("App. Br.")) at 20.) Bell alleges that he then dropped the gun in the lobby and drove off with Moore. However, eyewitnesses later stated that they observed Bell chasing McLeod down the street, firing two or three more shots at McLeod before driving away with Moore in a white vehicle. McLeod suffered a non-fatal gunshot wound to the head.

When police responded, eyewitnesses identified the shooter as a 19- to 20-year-old black male named "Demetrius," a former resident of the Bronx who recently had moved to Schenectady, New York with Moore. Based on this information, police conducted a database search and the only name returned was "Demetrius Bell," born November 4, 1982, residing at a Schenectady address and to whom a white 1991 Mercury, New York license plate number CFX1473, was registered. The police issued a statewide "Be on the Lookout" ("BOLO") alert for Demetrius Bell, stating that he was wanted in connection with a homicide in the Bronx. The BOLO provided a description of Bell and indicated that he was likely heading towards Schenectady, accompanied by a "black female," in a 1991 white four-door Mercury with a New York license plate reading CFX1473.

At about 1:37 a.m. on March 9, 2003, a Schenectady police officer who received the BOLO alert recognized Bell's vehicle near a highway exit leading to Schenectady, and he effected a stop. The officer saw Bell in the passenger seat with blood on his shirt and hands. Bell and Moore, the driver, identified themselves. After confirming that Bell was the suspect described in the BOLO alert, the officer handcuffed Bell and Moore and transported them to the Schenectady Police Station, where they awaited the arrival of New York City Police Department ("NYCPD") detectives.

Approximately three hours later, two NYCPD detectives arrived at the Schenectady Police Station and advised Bell of his Miranda rights. Bell agreed to provide the detectives with both an oral and a written statement. In his statement, Bell claimed that he wrested the gun away from Rachel, but that he then dropped the weapon in the lobby of the apartment building and ran to the car.

Police executed a search warrant of Bell's vehicle and recovered, among other things, a bloody t-shirt and a loaded nine-millimeter handgun with blood smeared on the handle. A ballistics examination revealed that the weapon matched the ballistics evidence recovered from the crime scene, and DNA testing revealed that the blood on both the gun handle and the t-shirt matched Bell's DNA profile.

B. PROCEDURAL HISTORY

The Bronx County Grand Jury indicted Bell of Murder in the Second Degree, Attempted Murder in the Second Degree, Assault in the First and Second Degrees, Attempted Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Reckless Endangerment. Before trial, Bell filed a motion to suppress evidence obtained after his arrest, arguing that the police, acting solely on the basis of the BOLO alert, lacked probable cause to stop his vehicle and arrest him. Bell's motion was denied.

With regard to the count of Criminal Possession of a Weapon in the Second Degree, Bell requested a jury instruction of temporary and lawful possession, reasserting that he left the gun at the scene and had not brought it with him in the car. The Trial Court refused Bell's request; instead it instructed the jury that justification is not a defense to Criminal Possession of a Weapon in the Second Degree, but "the use of the weapon with justification is not evidence of possession with intent to use it unlawfully against another." (Hughes Decl. Ex. 2 (Respondent's Brief, dated October 2007 ("Resp. Br.")) at 25.)

On March 21, 2005, the jury found Bell guilty of Possession of a Weapon in the Second Degree in violation of New York Penal Law § 265.03, and acquitted him on all other counts. The Trial Court sentenced Bell, as a second felony offender, to a determinate prison term of fourteen years.

On appeal to the New York Appellate Division, First Department ("Appellate Division"), Bell argued that: (1) the Trial Court erred in admitting evidence obtained after Bell's arrest, as police had no probable cause based on the BOLO alert to arrest and detain him for over three hours; (2) the Trial Court erred in refusing to instruct the jury on his requested temporary lawful possession of a weapon defense; and (3) because it was Bell's first violent conviction and he was twenty years old at the time of the incident, his fourteen-year sentence was harsh and excessive and should be reduced in the interest of justice.

On December 20, 2007, the Appellate Division unanimously affirmed Bell's conviction, finding that: (1) the Trial Court "properly denied [Bell's] suppression motion" where "police had probable cause to arrest [Bell] based on information obtained from eyewitnesses and the subsequent investigation," and "[o]nce the [arresting] officer observed and recognized [Bell] in a vehicle which matched the description given in the radio transmission, he was entitled under the fellow officer rule to arrest [Bell]"; (2) the Trial Court "properly denied [Bell's] request for a charge on the defense of temporary and lawful possession since there was no reasonable view of the evidence, in a light most favorable to [Bell], to support such a charge," for "[e]ven under [Bell's] version of the events, his conduct was utterly at odds with any claim of innocent possession"; and (3) there was "no basis for reducing the sentence." People v. Bell, 46 A.D.3d 385, 848 N.Y.S.2d 618, 618 (1st Dep't 2007) (citations and quotation marks omitted).

On January 31, 2008, Bell sought leave to appeal the Appellate Division's ruling to the New York Court of Appeals, filing a supplemental letter on February 27, 2008. Bell's request was denied by the Court of Appeals on March 27, 2008. People v. Bell, 10 N.Y.3d 808, 857 N.Y.S.2d 41, 886 N.E.2d 806 (2008) (table). Bell timely filed this petition for a writ of habeas corpus on June 5, 2008, within the one-year limitation period under 28 U.S.C. § 2244(d)(1).

II. DISCUSSION

A. LEGAL STANDARD

As an initial matter, the Court notes that Bell is proceeding pro se, and accordingly his submissions should be held to "less stringent standards than formal pleadings drafted by lawyers." Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993) (quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). The Court, moreover, must liberally construe Bell's pro se pleadings and interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Pro se status, however, "does not exempt a party from compliance with relevant rules of procedural and substantive law." Boddie v. New York State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).

Federal habeas review of state court decisions is governed by the standard set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §§ 2241-55. AEDPA provides that a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). Errors of state law are not subject to federal habeas review, for "`it is not the province of a federal...