Blocker v. Graham

• Docket Number: 6:17-cv-06648-CJS
• Decision Date: 02 February 2022
• Parties: MARLO J. BLOCKER, Petitioner, v. SUPERINTENDENT HAROLD GRAHAM, Respondent.
• Court: U.S. District Court — Western District of New York

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MARLO J. BLOCKER, Petitioner, v. SUPERINTENDENT HAROLD GRAHAM, Respondent.

No. 6:17-cv-06648-CJS

United States District Court, W.D. New York

February 2, 2022

For Petitioner: Marlo J. Blocker, Pro Se

For Respondent: Michelle Maerov, A.A.G. Paul B. Lyons, A.A.G. New York State Attorney General's Office

DECISION AND ORDER

HON CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE

INTRODUCTION

Marlo J. Blocker (“Blocker” or “Petitioner”), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Blocker is in Respondent's custody pursuant to a judgment entered on January 13, 2010, in New York State Monroe County Court (Geraci, J.), following a jury verdict convicting him of several weapons-possession offenses. For the reasons discussed herein, the request for a writ of a habeas corpus is denied.

BACKGROUND

I Pre-Trial Proceedings

The conviction at issue here stems from a traffic stop of Blocker's car on January 2, 2009, which resulted in the seizure of a sawed-off shotgun and a handgun. Blocker, along with his two passengers, Craig Madison (“Madison”) and Freddie Collins (“Collins”), were indicted as accessories with four counts of second-degree criminal possession of a weapon (New York Penal Law (“P.L.”) §§ 265.03(1)(b), (3)) for possessing the handgun and shotgun with intent to use them unlawfully against another person, and for possessing the weapons outside a home or business; and three counts of third-degree criminal possession of a weapon (id. §§ 265.02(1), (3)) for knowingly possessing the handgun and the shotgun, and for possessing a defaced shotgun. As owner of the vehicle, Blocker was charged with unlawful window-tinting (New York Vehicle & Traffic Law § 375). See SR.010-024.^[1]

On June 5, 2009, and June 16, 2009, Monroe County Court Judge Frank P. Geraci, Jr. (“trial court”) held an evidentiary hearing on the three defendants' motions challenging the legality of the traffic stop, arrests, search of the car, and seizure of the shotgun and handgun. The trial court denied the suppression motions in full at the end of the second hearing. See H2. 63-72.^[2] In particular, the trial court ruled that the traffic stop was proper, H2. 70, and the glove box was properly searched. H2. 71.

A week later, Madison pleaded guilty to the indictment in exchange for a determinate sentence of seven years' imprisonment plus five years' post-release supervision. Tr. 364. Blocker and Collins proceeded to a joint jury trial in October 2009.

II. Trial

A. The People's Case

On January 2, 2009, at approximately 12:01 a.m., Officers Thomas Luciano (“Luciano”), Aaron Wilcox (“Wilcox”), and Bradley Pike (“Pike”) of the Rochester Police Department (“RPD”) Tactical Unit were driving south on Conkey Avenue in separate marked patrol cars. The officers explained that they had just cleared an unrelated report of “shots fired.” Tr. 219-21, 240, 249-50, 261, 300-01. Luciano, in the lead position, testified that he stopped at the four-way stop at Conkey and Clifford Avenues and then turned left onto Clifford, heading east. Tr. 221.

As Luciano turned, he observed a black Ford Taurus station wagon travelling westbound on Clifford Avenue as it pulled up to the stop sign at Conkey Avenue. Tr. 221, 247. According to Luciano, the station wagon's side and rear windows were tinted so darkly he could barely see through them. Tr. 221, 232. Suspecting a window-tinting violation, Luciano radioed Wilcox and Pike of his intention to stop the station wagon. Luciano said that he activated his emergency lights, drove past the wagon, parked his patrol car in the eastbound lane, and walked toward the driver's side of the station wagon. Tr. 221-22.

Wilcox, who was next in line, testified that he parked in the intersection, activated his emergency lights, and focused a spotlight on the station wagon's un-tinted windshield, illuminating the interior. Tr. 301, 304.

Pike testified that after parking his car on Conkey Avenue, he approached the Ford Taurus from the front, on the passenger's side. Tr. 250, 262-63. Pike related that he saw the front-seat passenger, later identified as Madison, “bending forward, he was seat-belted in, and [Pike] could see his back coming away from the seat and he was leaning forward, possibly grabbing something or stashing something.” Tr. 250-52, 262-63. According to Pike, Madison's “shoulders [were] moving away from the seat bending down, forward, possibly grabbing a weapon or trying to conceal one.” Tr. 263. Pike testified that he alerted the other officers by yelling, “he's reaching, he's reaching!” Tr. 251-52.

Pike said he then ran up to the front passenger's-side door but found his view obstructed by the tinting on the side windows. Tr. 251-52, 264. Pike testified that when he opened up the passenger's-side door and trained his flashlight on Madison, he “immediately noticed that [Madison's] hands were close together, his legs were close, tight; his hands were palms down. It appeared that he was either covering something or holding something.” Tr. 252, 264. Pike said that he observed the “slide” of a shotgun, which was “resting against the seat right between [Madison's] legs.” Tr. 252, 257, 264, 268.

Pike testified that he yelled, “gun, gun, gun” while drawing his weapon and grabbing the shotgun. Tr. 252-53. Luciano testified that, after hearing Pike yell, he pointed his gun at Blocker, who was in the driver's seat. Tr. 222-23, 233-36. Luciano stated that he first noticed the shotgun when he observed Pike reach between Madison's legs and remove it. Tr. 235, 239, 244-45. Luciano described the shotgun as lying “between [Madison's] knees.” Tr. 243-44.

Pike testified that after grabbing the shotgun, he arrested Madison, placed him in handcuffs, searched him, and recovered the following items from his pockets: three live rounds of 20-gauge shotgun ammunition, a camouflage-patterned neoprene face mask, and gloves. Tr. 254-57, 265-66. Luciano recounted that his search of Blocker yielded no contraband but he discovered that the Taurus was registered to Blocker. Tr. 225, 236- 37, 241.

Responding officer Matt Klein (“Klein”) testified that he searched the backseat passenger, later identified as Collins, who was wearing a “level 1 bullet-proof vest” with “a trauma plate” under his clothing. Tr. 288-89.

Since the car had to be towed, Luciano testified that the police first searched it for personal property pursuant to RPD policy. Tr. 225-26. Officer Nicholas Romeo (“Romeo”) arrived and conducted the search while the car was still running. When he opened the glove box, he found a black handgun. Tr. 275-76. Luciano and Pike testified that the glove box was directly in front of where Madison had been sitting. Tr. 239-40, 263, 270.

Police technician Richard Martin (“Martin”) testified that the shotgun contained three live rounds of ammunition in the magazine and one live round in the chamber; the handgun had eight live rounds in the magazine. Tr. 314-17. Fingerprint testing of the handgun and shells yielded no results. Tr. 317, 330-31.

Firearms examiner Eric Freemesser (“Freemesser”) testified that both the sawed-off shotgun and the handgun were operable, and that the shotgun's serial number had been intentionally scratched off. Tr. 339-40, 342, 347. Freemesser stated that though he recovered the shotgun's serial number, he could not determine ownership of either weapon. Tr. 349. According to Freemesser's measurements, the overall length of the shotgun was 25 inches and the barrel-length was 14 inches. Tr. 343.

B. The Defense Case

Blocker's theory of the case was that the shotgun and the handgun belonged to the front seat passenger, Madison, and that Blocker's only connection to Madison was that he had agreed to give Collins and Madison a ride. Tr. 215-16. In support of this theory, Blocker's attorney subpoenaed Madison to testify at trial. Tr. 7.

Just prior to taking the stand, Madison announced that he would invoke his Fifth Amendment right against self-incrimination. Tr. 363-69, 372-74. Although this prevented Madison from being called to testify, the trial court ruled that a portion of Madison's plea colloquy could be admitted into evidence as a statement against penal interest. Tr. 373- 74, 377-92. The following excerpt from Madison's plea colloquy was read into the record:

Q. While you were in that motor vehicle, did you possess a sawed-off shotgun, a 20-gauge sawed-off shotgun?

A. Yes.

Q. And did you know that that gun was loaded at that time?

A. Yes.

Q. And you knew that was less than 26 inches, the shotgun, correct?

A. Yes.

Q. Were you also in possession of a loaded handgun that was in the glove compartment?

A. Yes.

Q. And that was a 9-millimeter pistol, correct?

A. Yes.

Q. And you're aware that the handgun was there?

A. Yes.

Q. And you could have used it if you wanted to?

A. Yes.

Tr. 405-06.

C. The Verdict

The jury returned a verdict on October 22, 2009, acquitting Blocker on count four (third-degree criminal possession of a weapon on the theory that the sawed-off shotgun was defaced) and convicting him on the remaining counts.^[3]

D. The Motion to Set Aside the Verdict

On December 2, 2009, the parties appeared before the trial court. At that time, trial counsel asked for an adjournment so that Blocker could file a motion to set aside the verdict. On January 10, 2010, trial counsel submitted a motion pursuant to New York Criminal Procedure Law (“C.P.L.”) § 330.30(1) and (3), attaching an affidavit signed by Blocker, SR. 63-65, and a sworn statement by Mizael Rosario (“Rosario”) dated October 28, 2009, SR. 66-67, who allegedly observed the traffic stop of Blocker's vehicle.

Among other things, Blocker's affidavit argued that certain alleged inconsistencies in the...