Black v. Goord

• Decision Date: 06 March 2006
• Docket Number: No. 01-CV-0828.,01-CV-0828.
• Citation: 419 F.Supp.2d 365
• Parties: Malik BLACK, f/k/a Ernest Dunham, Petitioner, v. Glenn S. GOORD, Commissioner, N.Y.S. Dept. of Correctional Services, Respondent.
• Court: U.S. District Court — Western District of New York

419 F.Supp.2d 365

Malik BLACK, f/k/a Ernest Dunham, Petitioner, v. Glenn S. GOORD, Commissioner, N.Y.S. Dept. of Correctional Services, Respondent.

No. 01-CV-0828.

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

March 6, 2006.

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Malik Black, Attica, NY, Pro se.

Loretta S. Courtney, Esq., Attorney's Office, Rochester, NY, for Respondent.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Petitioner, Malik Black ("Black"), filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges of second degree murder. The parties have consented to disposition of this matter by the undersigned pursuant 28 U.S.C. § 636(b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The conviction here at issue stems from the shooting death of Gregory Rodgers ("Rodgers") on October 31, 1993, at 532 Seward Street in the City of Rochester. Rodgers died as a result of multiple gunshot wounds, two to the head and one to the chest. Black, who at that time was known as Ernest Dunham, was eventually arrested and indicted by a Monroe County grand jury on five counts: second degree (intentional) murder (N.Y. Penal Law § 125.25(1)); second degree (depraved indifference) murder (N.Y. Penal Law § 125.25(2)); second degree (felony) murder (N.Y. Penal Law § 125.25(3)); and first degree robbery (N.Y. Penal Law § 160.15(3), (4)). Black was tried before a jury in Monroe County Court (Bristol, J.).

The prosecution presented evidence that just minutes before his death, Rodgers had been visiting at the home of Kenya Matthews ("Kenya") at 879 Jefferson Street. At the time, Kenya was Black's girlfriend. Also present at the house were Black; Kenya's cousin, Chandra Matthews ("Chandra"); Robert Carlos ("Carlos"); Adam Bowen ("Bowen"); Jeremy Siplin ("Siplin"); and Kenya's and Chandra's children. Carlos was in the kitchen with Bowen and Siplin, and Black and Kenya were in a nearby bedroom. T.542.¹ Chandra and the children were in the living room. When Rodgers arrived at Kenya's residence, he joined the men sitting the kitchen and was talking with them when Kenya and Black came out of the bedroom. Chandra heard Kenya said something to the effect of, "Don't say anything," while Siplin held her back from going into the kitchen. T.623-24. Both Chandra and Kenya testified that Black then confronted Rodgers verbally, calling Rodgers a "bitch ass nigger" and stating something to the effect of, "That was real foul, that shit you did." T.624-25, 692. Rodgers replied, "What are you talking about?" T.625. Black then said to Bowen, "Give me the tool," referring to the gun that Black had just given him in the bedroom. T.626, 689, 693. Bowen handed it over. Chandra and Kenya recounted that Black held the gun right up against Rodgers's head and ordered him to strip. T.627-28, 694. At first, Rodgers tried to laugh it off, but he started to comply when Black yelled at him. T.694. When Rodgers went to remove his shirt, he threw it over Black's face and knocked the gun out of Black's hand, causing it to go flying under the table. T.696. As Black and Rodgers struggled, Black eventually made his way under the table and picked up the gun. Id. By this time, Chandra had run out of the house, with Rodgers right behind her, and Black following him. Id. In his hurry to escape, Rodgers left his coat, pager and keys in Kenya's kitchen.

Chandra was already across the street when she heard the first shot fired somewhere behind her. T.630-31. Chandra looked around and saw Black standing on the porch, holding the gun and pointing in the direction where Rodgers had run, which was through the "cut," a driveway that led into some backyards. T.631-32. As Chandra turned right to head in the other direction, she saw Black running after Rodgers. T.634. Kenya also saw Black chasing after Rodgers, firing a gun at him. T.698. She called for Black to come back to the house but he did not. Kenya testified that Carlos and Siplin grabbed Rodgers' coat and belongings and left the house.

Eventually, Black returned to Kenya's house and announced to Kenya and Chandra, "[T]hat kid is dead." Chandra asked him how he knew, and he responded, "[B]ecause [I] shot him in the head." T.638. Chandra did not believe Black, but he insisted that he had stood over Rodgers and shot him in the head in front of the house belonging to some of Chandra's cousins on Seward Street. T.701-02. Chandra went outside to investigate and discovered Rodgers's dead body at the location on Seward Street (number 532) that Black had indicated.

Wayne Walker ("Walker"), the resident of 532 Seward Street, stated that he heard three sets of three gunshots. T.446 (Walker). Just before the last series of gunshots, Walker heard a male voice say, "Where do you think you're going?" Id. When the shooting stopped, Walker ventured outside and found Rodgers, fatally shot.

Back at the house, Kenya overheard Black talking to Bowen. T.703. Black told Bowen that when they were running through the yards, Rodgers slowed down somewhat and said that he was all right. Id. Kenya testified that Black recounted that he caught up to Rodgers and said, "[T]hat was some bitch that he pulled or something in that category and he [Black] shot him [Rodgers] again." Id. Before Black left Kenya's house, he announced that he was going to dye the victim's coat white and have a purple lining put in it. T.704.

Kenya admitted that when she first spoke to the police, the statement she gave was not true "because [Black] had not been arrested on the murder charges yet" and "everyone thought that he was getting out soon." T.706-07. She stated that she had two children and that she lived by herself, and that all the people who hung around her house were involved with Black. T.707. Kenya testified that she told the truth to the grand jury because by that time, Black had been arrested. Id.

Two spent casings and a spent bullet were recovered at the crime scene, and were determined to have been fired from the same .38—caliber semi-automatic handgun. The murder weapon was never found, however.

The jury returned a verdict acquitting Black of all charges in the indictment except for one count of second degree (depraved indifference) murder. He was sentenced to twenty-five years to life in prison.

Represented by new counsel, Black appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Black also filed a pro se supplemental brief. The Appellate Division unanimously affirmed his conviction on May 7, 1999. People v. Dunham, 261 A.D.2d 909, 692 N.Y.S.2d 244 (4th Dep't 1999). The New York Court of Appeals denied leave to appeal on August 10, 1999. People v. Dunham, 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937 (1999). Black filed no motions for collateral relief in state court.

The habeas petition was filed on October 16, 2001. Black, represented by Charles Buxton, Inmate Law Library Clerk, raises the following grounds for relief: (1) the delay in arresting petitioner resulted in the denial of the Sixth Amendment right to counsel, the right to testify, and due process; (2) petitioner was denied of his Sixth Amendment right to be present at all material stages of his trial; (3) the trial court's failure to dismiss a juror sua sponte was an abuse of discretion and violated petitioner's right to due process and an impartial jury; (4) trial counsel was ineffective; and (5) petitioner was denied his Sixth Amendment right to be represented by counsel of his own choice. See Petitioner's Memorandum of Law ("Pet'r Mem.") (Docket # 3). Respondent has not raised the defenses of non-exhaustion or procedural default with respect to any of Black's claims, and the claims all appear to be properly before this Court on habeas review. For the reasons set forth below, the petition is denied.

DISCUSSION

Standard of Review

To prevail under 28 U.S.C. § 2254, as amended by the Anti—Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Merits of the Petition

1. Delay in Arrest

Black contends that there was a two-month "unjustifiable" and "intentional" delay in arresting him in connection with the Rodgers homicide violated his "rights to assistance of counsel, to testify on [his] own behalf, and to due process[.]" Pet'r Mem. at 9 (Docket # 3). On direct appeal, the Appellate Division "reject[ed] the contention of defendant that the twomonth delay between the questioning by the police and his arrest, during which time he pleaded guilty to an unrelated crime, violated his right to counsel. Defendant has no constitutional right to be arrested[.]" People v. Dunham, 261 A.D.2d at 910, 692 N.Y.S.2d 244 (citing, inter alia, Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)).

As the Appellate Division noted, the right to be arrested simply is not guaranteed by either the New York state or the federal constitution. See Hoffa, 385 U.S. at 310, 87 S.Ct. 408;² accord United States v. De Biasi, 712 F.2d 785, 795 (2d Cir.1983) ("[T]here is no support for [defendant's] novel suggestion that he was constitutionally entitled to an arrest the moment there was probable cause to arrest.") (citing Hoffa, 385 U.S. at 310, 87 S.Ct. 408; United States v. Waltzer, 682 F.2d 370, 373 (2d Cir.1982)). The Second Circuit has explained that delay prior to arrest "is usually free of the sometimes ...