Bey v. Chappius
| Decision Date | 30 September 2019 |
| Docket Number | 16-CV-7084 (KAM) |
| Parties | JAMAL SALAAM BEY, Petitioner, v. SUPERINTENDENT P. CHAPPIUS, SUPERINTENDENT OF ELMIRA CORRECTIONAL FACILITY, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On October 9, 2013, a jury of the Supreme Court of the State of New York, Queens County ("the trial court") found Jamal Salaam Bey ("petitioner") guilty of second-degree robbery, third-degree assault, and possession of stolen property in the fifth-degree. On December 16, 2013, the trial court imposed on petitioner a twelve-year prison term for the robbery conviction, to be served concurrently with two one-year terms for the assault and possession of stolen property convictions, all to be followed by a five-year term of post-release supervision. Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (hereinafter, "Appellate Division"). The Appellate Division affirmed his conviction. Petitioner now seeks relief from this court pursuant to 28 U.S.C. § 2254.
In his petition, filed on December 19, 2016, petitioner appears to raise three grounds for his requested habeas relief. First, he challenges the sufficiency of the evidence supporting the "physical injury" element of his assault conviction. (Pet. 8.) Second, he alleges the prosecutor improperly used his criminal history against him in arguing for an enhanced sentence. (Id. at 6.) Third, and alternatively, he alleges the prosecutor "made up a story" about petitioner's criminal history, which constituted "malicious prosecution."1 (Id. at 9.) For the reasons set forth below, the court DENIES the petition in its entirety.
On February 10, 2013, Abdourahmane Hamidou, a store security guard for a Trade Fair supermarket in Queens County, New York, saw petitioner remove bars of soap from the store shelves and put them into his pocket while monitoring the aisles (Trial Transcript ("Tr.") 494, 704-705, 709-10, 734, 739-41, 744-46.) Hamidou asked petitioner to return the items to the shelves, to which petitioner responded "fuck you, motherfucker" and started punching Hamidou's head. (Tr. 499-504, 518-521, 558-560, 579-81, 710-14, 716-17, 731, 739, 741-45.) As Hamidou grabbed petitioner by the waist to keep him from leaving thestore with the stolen goods, petitioner pulled Hamidou's hooded sweatshirt over his head, thus obstructing his vision and the use of his arms, continued punching Hamidou's head and body, and then attempted to flee while bashing Hamidou's head into the aisles and a candy machine near the supermarket exit. (Tr. 499-500, 503-504, 518-521, 558-560, 636-637, 639-643, 677-78, 713-714, 716, 743-745.) Farjana Sarker, a store manager, called the police after witnessing petitioner repeatedly punch Hamidou in the head and slam Hamidou's head into the candy machine. (Tr. 633-34, 504-09, 536, 564, 569.) After petitioner continued to punch and drag Hamidou and attempted to break free for about three to ten minutes, Hamidou, Mohammad Chaudry, another store manager, and Useman, another guard, all tried to pull petitioner back into the store to wait for the police. (Tr. 716-718, 743-744, 505-506, 562-644, 642-645, 649-650, 669-670, 678-680, 716-18, 743-44.) Hamidou fell to the ground in this struggle. (Tr. 680.) Chaudry and Hamidou made petitioner sit and wait until the police arrived, even though petitioner refused. (Tr. 646-47, 719-20.) Petitioner told Hamidou that he would be coming back later for him. (Tr. 664, 719-20.)
As a result of petitioner's punches, Hamidou experienced a laceration over his eye, substantial pain in his head and eye, chest pain, dizziness; his whole body hurt, and breathing was painful. (Tr. 714-16, 755.) After thealtercation, Hamidou felt unwell and bled from a cut over his eye as a result of his head being smashed against the aisles and the candy machine. (Tr. 505, 510, 652-53, 713-14, 722-23.) Hamidou's breathing was labored, and he held his chest after petitioner was brought back into the store. (Tr. 653, 713-714, 722-24.) Sarker recovered the soap, candy, and ice cream that had fallen out of petitioner's pockets. (Tr. 533-34, 647-49, 660-62, 685, 599-602, 614.)
Officers James Bing and Mohammad Rahman responded to the incident. (Tr. 596, 778-780.) Bing noticed Hamidou's labored breathing. (Tr. 598-99, 610-11, 780.) He requested an ambulance for Hamidou and Chaudry, whose thumb was lacerated in the incident. (Tr. 600, 610-11.) Hamidou refused to go to the hospital, and the responding emergency medical technicians believed he had no medical insurance. (Tr. 723-24.)
Hamidou's dizziness persisted for three or four days; he did not work the day following petitioner's robbery, and worked only a half-day the day after that. (Tr. 725.) He also had "real" chest pain for two or three days after the incident and head pain for about two weeks. (Tr. 722.) Hamidou had a visible mark from the cut above his eye for months following the robbery. (Tr. 723.) He took Advil for two weeks after the incident and used pain relief ointment for his body up until the time of trial. (Tr. 724.) He was transferred to a maintenancework position in the store at his request because he no longer wished to work as a security guard after the incident. (Tr. 632, 702.)
During the government's case-in-chief, several store surveillance videos that depicted most of the robbery were admitted into evidence and viewed by the jury. Petitioner submitted his medical records from Mount Sinai Hospital into evidence which contained an emergency medical technician's report. (Tr. 791.)
On October 9, 2013, the Queens County Grand Jury charged petitioner with second-degree robbery, (N.Y. Penal Law § 160.10(2)(a)), third-degree assault, (id. § 120.00(1)), fifth-degree possession of stolen property, (id. § 165.40), and harassment. (Opp. 1; Tr. 889-92.) On December 16, 2013, after a jury trial before the Honorable Deborah Modica in the Queens County Supreme Court, petitioner was convicted of all counts except the harassment count. As petitioner was a second-felony offender, the court imposed the following concurrent sentences: a twelve-year determinate prison term on the robbery conviction to be followed by five years of post-release supervision, and two one-year terms each on the assault and possession of stolen property counts.
Petitioner appealed his conviction to the Appellate Division. He argued that (1) the proof of the injury element ofhis assault conviction was legally insufficient, and the verdict was against the weight of the evidence; and (2) the court abused its discretion at sentencing when it denied counsel's request for a mental health examination and when it imposed a twelve-year prison sentence, which was excessive in view of the circumstances of the incident, petitioner's mental instability, and the government's pre-trial offer of a five-year sentence. (State Ct. R. ("SR.") 1-34.) On June 22, 2016, the Appellate Division affirmed petitioner's conviction and sentence. People v. Bey, 140 A.D.3d 1079 (N.Y. App. Div. 2016). The court rejected petitioner's challenge to the evidence, finding that the People had "adduced legally sufficient proof of the physical injury element of the robbery and assault counts," and that the verdict with respect to the injuries was not against the weight of the evidence. Id. at 1080. The court also found that the sentencing court did not improvidently exercise its discretion in denying counsel's request for, "in effect, a mental health evaluation in connection with sentencing," and that petitioner's sentence was not excessive. Id. Petitioner sought leave to appeal from the New York Court of Appeals. (SR. 90.) He once again challenged the sufficiency of the trial evidence as to physical injury, and also challenged the sentencing court's decision not to order a psychiatric examination. (Id. at 89-93.)
On October 20, 2016, the Court of Appeals denied petitioner leave to appeal. People v. Bey, 28 N.Y.3d 1025 (N.Y. 2016).
Petitioner, proceeding pro se, timely filed the instant habeas petition on December 19, 2016, raising largely the same challenge as he did on direct appeal to the sufficiency2 of the "physical injury" element of his assault conviction, and additionally contending that the prosecutor improperly used his criminal history against him, or fabricated that history, in arguing for an enhanced sentence. (Pet. 1, 6, 8-9.)
Pursuant to 28 U.S.C. § 2254, "a district court shall entertain an application for a writ of habeas corpus on 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).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. 28 U.S.C. § 2254(d). AEDPA's standard is a highly deferential standard of review, "requiring courts to assess whether the state court's decision was 'so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Garner v. Lee, 908 F.3d 845, 861 n.14 (2d Cir. 2018), cert. denied, No. 18-8348, 2019 WL 1104003 (U.S. Apr. 22, 2019) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011). A federal habeas court must presume all state court factual determinations to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The presumption of correctness in the state court's factual findings is particularly strong when the state court jury has assessed witness credibility. See Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003); see also ...
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