Bowie v. Lee

Decision Date28 December 2021
Docket Number13-CV-7317 (KMK) (PED)
CourtU.S. District Court — Southern District of New York
PartiesPATRICK BOWIE, Petitioner, v. WILLIAM LEE, Superintendent, Green Haven Correctional Facility, Respondent.

PATRICK BOWIE, Petitioner,
v.

WILLIAM LEE, Superintendent, Green Haven Correctional Facility, Respondent.

No. 13-CV-7317 (KMK) (PED)

United States District Court, S.D. New York

December 28, 2021


Patrick Bowie Stormville, NY Pro Se Petitioner

Andrew R. Kass, Esq. Orange County District Attorney's Office Goshen, NY Counsel for Respondent

ORDER ADOPTING REPORT & RECOMMENDATION

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE:

Patrick Bowie (“Petitioner”), proceeding pro se, has filed a Petition for a Writ of Habeas Corpus (the “Petition”), pursuant to 28 U.S.C. § 2254, challenging his August 30, 2007 conviction, following a jury trial in New York Supreme Court, Orange County (“County Court”), for two counts of Murder in the First Degree, four counts of Robbery in the First Degree, one count of Criminal Possession of a Weapon in the Second Degree, and one count of Conspiracy in the Second Degree. (See generally Pet. for Writ of Habeas Corpus (“Pet.”) (Dkt. No. 1).)

Petitioner timely filed a direct appeal of his conviction to the New York Supreme Court, Appellate Division, Second Department (“Second Department”), which affirmed the conviction on April 5, 2011. See People v. Bowie, 919 N.Y.S.2d 893 (2d Dep't 2011). The New York

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Court of Appeals (“Court of Appeals”) denied Petitioner's motion for leave to appeal on July 26, 2011, see People v. Bowie, 17 N.Y.3d 804 (2011), and denied Petitioner's motion for reconsideration of that denial on July 16, 2012, see People v. Bowie, 19 N.Y.3d 971 (2012).

On October 15, 2013, Petitioner moved before the County Court to vacate his conviction pursuant to New York Criminal Procedure Law (“NY CPL”) § 440.10 (“First 440.10 Motion”), which the County Court denied on July 30, 2014. (See Resp't's Mem. of Law in Opp'n to Pet. (“Resp't's Opp'n”) (Dkt. No. 89) Exs. 40 & 44.)[1] The Second Department denied Petitioner's motion for leave to appeal on February 20, 2015, (see Resp't's Opp'n Ex. 48), and the Court of Appeals denied Petitioner's motion for leave to appeal on May 25, 2015, see People v. Bowie, 25 N.Y.3d 1069 (2015). The County Court denied Petitioner's motion for reconsideration on December 9, 2015, (see Resp't's Opp'n Ex. 56), and the Second Department denied Petitioner's motion for leave to appeal the denial of his motion for reconsideration on March 9, 2016, (see Resp't's Opp'n Ex. 59). Petitioner had also attempted to appeal the County Court's denial of his motion for reconsideration as of right; the Second Department dismissed this appeal as improper on March 29, 2016. (See Resp't's Opp'n Ex. 60.) On June 29, 2016, the Court of Appeals dismissed Petitioner's application for leave to appeal the Second Department's March 9, 2016 Order, see People v. Bowie, 27 N.Y.3d 1128 (2016); the Court of Appeals denied Petitioner's motion for reconsideration of that dismissal on November 1, 2016, see People v. Bowie, 28 N.Y.3d 1071 (2016).

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On May 23, 2017, Petitioner filed a petition for a Writ of Error Coram Nobis (“Coram Nobis Petition”) before the Second Department, (see Resp't's Opp'n Ex. 63), which denied it on December 6, 2017, see People v. Bowie, 64 N.Y.S.3d 607 (2d Dep't 2017). The Court of Appeals denied Petitioner's application for leave to appeal the Second Department's denial on March 15, 2018, see People v. Bowie, 31 N.Y.3d 981 (2018), and denied Petitioner's motion to reconsider that denial on May 16, 2018, see People v. Bowie, 31 N.Y.3d 1079 (2018). The Second Department denied Petitioner's motion for leave to reargue his Coram Nobis Petition on May 17, 2018. (See Resp't's Opp'n Ex. 73.)

Petitioner filed a supplemental brief in support of the Petition (“Petitioner's Supplemental Brief”) on January 14, 2019. (See Suppl. Br. Relief from J. (“Pet'r's Suppl. Br.”) (Dkt. No. 80).) Respondent filed a Memorandum of Law opposing the Petition, as supplemented, on May 6, 2018. (See Aff. in Opp'n to Pet. (“Resp't's Aff.”) (Dkt. No. 88); Resp't's Opp'n; see also Dkt. No. 90 (attaching exhibits and transcripts).) Petitioner filed a Memorandum of Law in reply to Respondent's Opposition (“Petitioner's Reply”) on August 12, 2019. (See Reply to Resp't's Answer for a Writ of Habeas Corpus (“Pet'r's Reply”) (Dkt. No. 103).)

In a thorough Report and Recommendation (“R&R”) dated May 14, 2021, Magistrate Judge Paul E. Davison (“Judge Davison”) recommended that the Petition be denied in its entirety. (See Report & Recommendation (“R&R”) 1 (Dkt. No. 120).) Petitioner filed Objections to the R&R on August 3, 2021, after seeking and receiving an extension of time to object. (See Pet'r's Obj's to R&R (“Obj's”) (Dkt. No. 132).) Respondent has not responded to the Objections. After a review of the R&R and Petitioner's Objections, the Court adopts the result recommended in the R&R and denies the Petition.

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I. Background

The factual and procedural background of this case is set forth in the R&R and the Court assumes the Parties' familiarity therewith. (See R&R 1-18.) The Court nevertheless summarizes the relevant facts and procedural history.

A. Factual Background

Fermina Nunez (“Nunez”) and Petitioner had been in a romantic relationship for several years when in September 2006, Petitioner moved his ex-wife and their child into his home in Middletown, NY, leading Nunez to break off her relationship with Petitioner. (Resp't's Opp'n 2.) In the months that followed, Petitioner went to great lengths to resume his relationship with Nunez, including visiting Nunez at her place of work (the Final Touch Salon in Middletown, which Nunez also owned) on numerous occasions, calling Nunez on the phone over 1, 000 times, contacting Nunez's brothers and children, and even offering one of Nunez's brothers $10, 000 to $15, 000 to persuade Nunez to resume the relationship. (Id. at 2-3, 5.)

Beginning in December 2006, Petitioner began to make dozens of calls to Melvin Green (“Green”), an old friend of Petitioner's, and on December 19, Petitioner visited Green at his apartment in the Bronx. (Id. at 5-7.) After their December 19 meeting, Green turned off his phone-making and receiving zero calls-until December 25, when Petitioner resumed his calls to Green. (Id. at 5.) On that same day, Petitioner visited Green's apartment again, and the two spoke behind closed doors for approximately 45 minutes. (Id. at 5-6.)

On December 30, 2006, Petitioner visited Nunez at the Final Touch Salon several times, and the two had a verbal argument that was witnessed by Nunez's employees and salon patrons. (Id. at 3.) Nunez told Petitioner that the relationship was over, and Petitioner responded by

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telling Nunez that she would be sorry and both she and her family would know “what he was capable of.” (Id.)

The salon stayed open late on December 30 to accommodate patrons who wanted to style their hair for New Year's Eve; at 11:00pm, Nunez was still at the salon with two of her employees, Deborah Carabello (“Carabello”) and Milagros Picon (“Picon”), and a patron, Esther Deslandes (“Deslandes”). (Id.) At around 11:45pm, Green entered the salon wearing a New York Yankees baseball cap, a dark leather jacket, jeans, and Timberland work boots, with his face uncovered, and armed with an old, chipped, black-brown .38-caliber revolver. (Id. at 4.) Green brandished the revolver at Nunez, Carabello, Picon, and Deslandes, and demanded all of their cash and valuables. (Id.) After the women complied, Green asked for the owner of the salon, and compelled Nunez to open the cash register. (Id.) After removing the cash from the register, Green forced Nunez to the ground, stepped on the back of Nunez's leg, fired a single shot from the revolver directly into the back of Nunez's head, and fled the scene. (Id.) Nunez died almost instantly. (Id.) Petitioner and Green spoke on the phone 91 times between December 28 and 30; the final communication between the two was a call from Green to Petitioner at almost the exact minute that a 911 call was made to Orange County Police following Nunez's murder. (Id. at 5-6.) Thereafter, Petitioner and Green had no further telephone contact. (Id. at 6.)

Police officers from the City of Middletown Police Department responded to the scene and quickly identified Petitioner as a suspect based on interviews with friends and witnesses to Petitioner's argument with Nunez earlier that day. (Id. at 4-5.) Responding officers also found small pieces of potatoes at the crime scene among the blood splatters, which indicated to police that the shooter may have attempted to use a potato as a homemade silencer. (Id. at 5, 19.)

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On December 31, 2006, Petitioner voluntarily visited the Middletown Police Department with his attorney and met with two detectives. (Resp't's Aff. 2-3.) Petitioner recounted his romantic history with Nunez, and stated that he was at home the night of December 30 when he received a phone call from his sister that something had happened to Nunez. (Id. at 3; Resp't's Opp'n 7.) Petitioner told police that after he learned of Nunez's death, he contacted his attorney. (Id.) The detectives observed that Petitioner's demeanor during the interview was overly calm and affectless; moreover, Petitioner did not indicate that he had contacted Nunez's family following her murder to send his condolences. (Resp't's Opp'n 7.)

After identifying Petitioner as a potential suspect, police had swiftly obtained access to Petitioner's phone records. (Resp't's Aff. 3.) The phone records quickly led police to Green, who was identified by eyewitnesses as the shooter; Green was then arrested on January 1, 2007. (Id.) After his arrest, Green confessed both to the murder and to being paid by Petitioner to carry it out, and while he was being booked at the Orange County Jail, police recovered a pair of Timberland boots that matched a footprint found on the back of Nunez's pants. (Id.; see also Resp't's Opp'n Ex. 75, Ex. 6.)[2] Green also indicated that the murder...

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