Black v. Rock

• Decision Date: 06 May 2015
• Docket Number: No. 13–CV–2260 WFK.,13–CV–2260 WFK.
• Citation: 103 F.Supp.3d 305
• Parties: Jamel BLACK, Petitioner, v. David ROCK, Superintendent, Upstate Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

103 F.Supp.3d 305

Jamel BLACK, Petitioner,

v.David ROCK, Superintendent, Upstate Correctional Facility, Respondent.

No. 13–CV–2260 WFK.

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

Signed May 6, 2015.

Lynn W.L. Fahey, William Geoffrey Kastin, Appellate Advocates, New York, NY, for Petitioner.

Kings County District, Attorneys Office–Generic, New York State Attorney, Generals Office–Generic, New York State Attorney Generals Office, Seth M. Lieberman, Kings County District Attorneys Office, Brooklyn, NY, for Respondent.

DECISION AND ORDER

WILLIAM F. KUNTZ, II, District Judge:

Before the Court is a petition for a writ of habeas corpuspursuant to 28 U.S.C. § 2254by Petitioner Jamel Black (“Petitioner”). Dkt. 1 (“Petition”). Petitioner, represented by counsel, argues he is entitled to habeasrelief because (1) he suffered a Batsonviolation. Id.at 16–48. Petitioner, proceeding pro se,raises the following additional bases for habeasrelief: (2) violation of Petitioner's due process rights due to prosecutorial misconduct regarding one witness's viewing of a line up; (3) violation of Petitioner's due process rights due to prosecutorial misconduct regarding the testimony of three witnesses; (4) violation of Petitioner's right to effective assistance of counsel at trial; and (5) violation of Petitioner's right to effective assistance of counsel at sentencing. Petition at 63–103. For the reasons discussed below, the petition for the writ of habeas corpusis denied in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Alleged Crimes, Arrest, and Conviction

On October 27, 2004, two people wearing hoods walked into a grocery store owned by Zolio Chavez (“Zolio”) in Brownsville, Brooklyn. Petition at 10; Dkt. 11 (“Opp.”) at ¶ 34. At the time, Zolio, his son Christian Chavez (“Christian”), and Jorge Vasquez (“Vasquez”) were working in the grocery store. Petition at 10. One hooded man wrestled with Zolio, while the other, Petitioner,¹pulled out a silver gun and demanded money from Christian, ordered Vasquez to lie down on the floor, and then knocked Zolio unconscious. Id.at 10, 52; Opp. at ¶ 3, 34–35, 39–40. The second man then stole Zolio's wallet from his pocket and money from the cash register, and both men fled together. Petition at 10; Opp. at ¶ 36, 39.

About a month later, on November 30, 2004, a few New York City Police Department (“NYPD”) officers saw Petitioner showing someone a black gun on a street in Brownsville. Petition at 10, 55; Opp. at ¶ 4, 41, 49–50. Two of the NYPD officers immediately chased Petitioner into a building, up the stairs, recovering the gun and a set of keys he discarded along the way. Petition at 10–11, 55, 57; Opp. at ¶ 4, 42, 49. The NYPD officers chased Petitioner into an apartment, using the keys Petitioner had dropped to get in. Opp. at ¶ 43. Once inside the apartment, they observed Petitioner closing a safe in a bedroom and immediately arrested him. Petition at 11, 55; Opp. at ¶ 4, 44, 49. The NYPD officers recovered a loaded silver handgun and live rounds from under the mattress, drugs from an open shoe box that also contained identification belonging to Petitioner, a wallet containing Zolio's identification, and drugs, ammunition, and cash from the safe. Id.at 11, 55, 58; Opp. at ¶ 45, 49–50.

Later that day, Christian identified Petitioner in a line-up. Petition at 11; Opp. at ¶ 4, 6–8, 37. Zolio also viewed a line-up that day, and stated the perpetrator of the robbery was either Petitioner or another man, but he was “almost sure” it was Petitioner. Petition at 11, Opp. at ¶ 6–8, 39, 54. According to the Screening Sheet and first N.Y. C.P.L. 710.30(1)(b)notice provided by the government to the defense, Vasquez viewed a line-up that day and identified an individual who was not Petitioner as the man who robbed the grocery store. Opp. at ¶ 6–8, 84; Dkt. 1–2 (“Pro SeExs”) at Ex. A, B. No other documents state Vasquez participated in a line-up, and the assigned detective does not remember Vasquez participating in a line-up. Opp. at 81–82, 84.

Subsequently, Petitioner was indicted for his “alleged involvement in [a robbery] that took place in October 2004 at a grocery store in Brooklyn[,]” as well as “for his alleged possession of a loaded firearm in November 2004.” People v. Hecker,15 N.Y.3d 625, 917 N.Y.S.2d 39, 942 N.E.2d 248, 260 (2010); see alsoPetition at 4, 50. Ultimately, after two previous indictments, Petitioner was charged in the Second Superseding Indictment with Robbery in the First, Second, and Third Degrees, Criminal Possession of a Weapon in the Third Degree, two counts of Criminal Possession of a Weapon in the Fourth Degree, Grand Larceny in the Fourth Degree, two counts of Petit Larceny, Assault in the Third Degree, two counts of Criminal Mischief in the Fourth Degree, two counts of Criminal Possession of Stolen Property in the Fifth Degree, Unlawful Possession of Marijuana, three counts of Criminal Possession of a Controlled Substance in the Seventh Degree, and Firearms/Possession of Ammunition. Petition at 51; Pro SeExs. at Ex. E.

On February 9, 2006, a Huntley–Wade²hearing was held by the trial court to determine whether the November 30, 2004 line-up evidence could be admitted at trial. Pro SeExs. at Huntley–WadeHearing; Opp. at ¶ 10. The Prosecutor stated that only two line-ups had occurred on November 30, 2004. Opp. at ¶¶ 10, 81–82. The trial court determined that the line-up evidence could be admitted into evidence because Petitioner's trial counsel (“Defense Counsel”) withdrew his objection to the line-up evidence. Pro SeExs. at Huntley–WadeHearing.

On April 4, 2006, Petitioner was convicted by a jury of Robbery in the First Degree (N.Y. Penal Law § 160.15(4)), Assault in the Third Degree (N.Y. Penal Law § 120.00(1)), Criminal Possession of Stolen Property in the Fifth Degree (N.Y. Penal Law § 165.40), and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(4)). Petition at ¶ 3; Opp. at ¶ 62. Petitioner was acquitted of Criminal Possession of a Weapon in the Fourth Degree, Unlawful Possession of Marijuana, two counts of Criminal Possession of a Controlled Substance in the Seventh Degree, and Possession of Ammunition. Petition at 11, 59; Opp. at ¶ 62. On May 1, 2006, Petitioner was sentenced to 31 years' imprisonment, twenty-four years imprisonment on the first degree robbery count and seven years imprisonment on the third degree criminal possession of a weapon count to run consecutively, as well as five years post-release supervision. Hecker,917 N.Y.S.2d 39, 942 N.E.2d at 262; Petition at ¶ 3, 59; Opp. at 65. The severity of Petitioner's sentence was due in part to his adjudication as a second violent felony offender as a result of a prior violent felony conviction for Criminal Possession of a Weapon in the Third Degree. Petition at 59, Pro SeExs. at Ex. I at 2, 341–45; Opp. at ¶¶ 63–65, 78–80, Attachment F (Plea Transcript) at 6.

Direct Appeal

On May 7, 2008, Petitioner appealed his conviction to the New York State Appellate Division, Second Department (“Second Department”). Petition at ¶ 7(a); see alsoDkt. 1–3 (“Principal Ex”) A; Opp. at ¶ 66. Petitioner, through counsel, argued “the [P]rosecutor's peremptory challenges to black jurors based on their residence, lack of employment, and level of education” violated Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Petition at ¶ 7(b). Petitioner also filed a supplemental pro sebrief. Id.; see alsoPrincipal Ex. D.

On September 29, 2009, the Second Department affirmed Petitioner's conviction by a vote of three to one. People v. Black,65 A.D.3d 1370, 886 N.Y.S.2d 460, 461–62 (2d Dep't 2009). Regarding the Batsonchallenge, the Second Department held the reasons proffered by the Prosecutor for challenging the three jurors at issue were race-neutral, and that Petitioner “failed to carry his ultimate burden of demonstrating discrimination by showing that the asserted reasons for the challenge[s] ... were pretextual.” Id.Regarding Petitioner's pro sebrief, the Second Department held the in cameraquestioning of jurors did not violate Petitioner's right to be present at all material stages of the trial because a juror had been, and had informed the other jurors that he/she had been, threatened. Id.at 462. The Second Department further found that both Petitioner's prosecutorial misconduct and ineffective assistance of counsel claims were meritless, and that the sentence imposed was not excessive. Id.

The dissenting judge agreed with the Second Department's findings in regards to Petitioner's pro seclaims, but stated he would have reversed the judgment on the basis that “[Petitioner] established a Batsonviolation with respect to the [P]rosecutor's exercise of peremptory challenges to strike jurors Angela Gordon and Tanya Williams by demonstrating that any concern with respect to their lack of employment bore no relation to the facts of the case and that Gordon's place of residence was not related to the factual circumstances of the case.” Id.(Spolzino, J.P., dissenting). He also noted that Williams' lack of a high school education was not a legitimate concern in this case. Id.

Petitioner sought and was granted leave to appeal to the New York State Court of Appeals (“Court of Appeals”) on January 6, 2010.People v. Black,13 N.Y.3d 937, 922 N.E.2d 916 (N.Y.2010); see alsoPetition at 7(d); Opp. at ¶ 68. On November 30, 2010, the Court of Appeals unanimously affirmed Petitioner's conviction. Hecker,917 N.Y.S.2d 39, 942 N.E.2d at 273–275. The Court of Appeals found “there [wa]s record support for [the] Supreme Court's acceptance of the race-neutral reasons” provided by the Prosecutor and that Petitioner “did not meet his ultimate burden of persuasion.” Id.,917 N.Y.S.2d 39, 942 N.E.2d at 273. With regards to Gordon and Williams specifically, the Court of Appeals reasoned the Prosecutor's race-neutral reasons “had some basis in accepted trial strategy.” Id.(internal quotation marks and citation omitted). The Court of...