Brims v. Collado
| Decision Date | 11 October 2022 |
| Docket Number | 18-CV-6973 (KMK) (PED) |
| Parties | EDWARD BRIMS, Petitioner, v. J. COLLADO, SUPT., Respondent. |
| Court | U.S. District Court — Southern District of New York |
Edward Brims
Pro Se Petitioner
Lisa E. Fleischmann, Esq.
Kaufman Borgeest & Ryan LLP
Counsel for Respondent
ORDER ADOPTING REPORT & RECOMMENDATION
Edward Brims (“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 January 27, 2012 conviction, following a jury trial in New York State Supreme Court, Rockland County (“County Court”), for two counts of Attempted Robbery in the First Degree, one count of Attempted Robbery in the Second Degree, one count of Assault in the Second Degree, and one count of Criminal Possession of a Weapon in the Second Degree. (See generally Pet. for Writ of Habeas Corpus (“Pet.”) (Dkt. No. 1).)
On August 14, 2018, the Court referred the Petition to Magistrate Judge Paul E. Davison. (Dkt. No. 7.) In a Report and Recommendation (“R&R”) dated March 4, 2022, Judge Davison recommended that the Petition be denied in its entirety. (See Report & Recommendation (“R&R”) 1 (Dkt. No. 48).) Petitioner filed Objections to the R&R on March 29, 2022 and May 5, 2022, after seeking and receiving an extension of time to object. 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.
The factual and procedural background of this case is set forth in the thorough R&R and the Court assumes the Parties' familiarity therewith. (See R&R 1-27; Resp't's Mem. of Law in Opp'n to Pet. (“Resp't's Opp'n”) 7-16 (Dkt. No. 16-1).) The Court nevertheless summarizes the relevant facts.
On October 12, 2010, Petitioner entered a convenience store in Spring Valley, New York, armed with a black and silver pistol, with a hood over his head and a white mesh hairnet covering his face. (R&R 2; Resp't's Opp'n 9-10.) The store owner, Rizwan Zafar (“Zafar”), was seated behind the counter. (R&R 2; Resp't's Opp'n 10.) Petitioner pulled out the gun and demanded money. (Id.) When Zafar did not respond, Petitioner, still pointing the gun, walked around the counter while ordering Zafar not to move. (Id.) Zafar then heard a “click” from the gun, which he believed was Petitioner attempting to fire the gun when it jammed. (Id.) Zafar rushed Petitioner, and the two men fought. (Id.) During the altercation, Zafar knocked away Petitioner's gun and pulled the hairnet from his face. (Id.) After battering Zafar repeatedly, Petitioner managed to recover his gun, and Zafar ducked behind the counter and grabbed a hammer, at which point Petitioner fled. (Id.) The entire incident was recorded on the store's surveillance system. (R&R 2; Resp't's Opp'n 11.)
Zafar called the Ramapo Police Department immediately after the incident. (R&R 2; Resp't's Opp'n 10.) When officers arrived, he provided a physical description of Petitioner and stated that Petitioner was carrying a silver and dark-colored pistol. (R&R 2; Resp't's Opp'n 11.) The officers and Zafar then drove around the area searching for Petitioner but returned to the store after they failed to locate him. (Id.) At that time, Zafar pointed out the white hairnet Petitioner had been wearing, which was lying just outside of his store. (R&R 3; Resp't's Opp'n 11.)
On November 9, 2010, a New York State Police forensic scientist took four swabs from the hairnet and used them to create a DNA profile. (R&R 3; Resp't's Opp'n 12.) Officers entered the information from the DNA profile into the New York State DNA Databank, which produced a New York State Convicted Offender Lab Report matching Petitioner. (Id.) Officers also learned that Petitioner had been seen driving a white 2000 Lincoln Continental bearing a certain license plate number. (Id.)
On December 16, 2010, the Rockland County Police spotted Petitioner's vehicle, which they identified by its license plate, being driven by a male matching Petitioner's description. (R&R 3; Resp't's Opp'n 12.) When officers tried to stop Petitioner, he suddenly drove away, starting a high-speed chase that eventually included five to ten police vehicles in pursuit and that only ended after Petitioner crashed his car into a telephone utility box. (R&R 3; Resp't's Opp'n 13.) Petitioner was placed under arrest. (Id.)
Officers then retraced the chase route and located a silver and black handgun that matched the gun seen in surveillance footage of the attempted robbery and that had scratches and gouge marks on one side consistent with it being thrown from a car. (R&R 4; Resp't's Opp'n 13-14.) The next day, officers also searched Petitioner's apartment and recovered two white hairnets that were similar in style and appearance to that located at Zafar's store. (R&R 4; Resp't's Opp'n at 14-15.) Later, in March 2011, the Rockland County District Attorney's Office received the County Court's approval to take a DNA buccal swab from Petitioner. (R&R 4; Resp't's Opp'n at 15.) After taking the swab from Petitioner, a New York state forensic scientist confirmed that the DNA from the swab matched DNA found on the trigger, grip, barrel, and magazine of the gun. (Id.) The New York State Police also confirmed that the recovered gun was operable and ready to fire at the time it was recovered. (Id.)
As relevant to the instant petition, a felony complaint was filed charging Petitioner with two counts of Attempted Robbery in the First Degree, one count of Attempted Robbery in the Second Degree, one count of Assault in the Second Degree, and one count of Criminal Possession of a Weapon in the Third Degree on December 17, 2010. (See Dkt. No. 16-2 at 1034.) On December 22, 2010, Petitioner had his initial grand jury presentment; the indictment (No. 07/2011) included all charges in the felony complaint except Criminal Possession of a Weapon in the Third Degree. (See Dkt. No. 16-4 at 45-48.) The prosecution later moved to file a charge of Criminal Possession of a Weapon in the Second Degree on July 7, 2011; the County Court granted this motion on July 20, 2011. (See Dkt. No. 16-3 at 25.) The Prosecution filed a second indictment (No. 342/2011), and Petitioner's grand jury presentment for this indictment took place on July 29, 2011. (See Dkt. No. 16-6 at 2.) The Prosecution then moved to consolidate the second indictment with the first, and the County Court granted this motion on August 26, 2011. (Id. at 4-7.)
Petitioner was arraigned on January 10, 2011 in the County Court. (See generally Dkt. 17-6.) An attorney, Martin Gotkin (“Mr. Gotkin”), appeared with Petitioner as his legal representative. (Id.) Petitioner pleaded not guilty. (Id. at 3.) During the hearing, the County Court discussed a pro se pre-trial motion Petitioner had filed and asked Petitioner if he intended to proceed pro se. (Id. at 3-4.) Petitioner stated on the record that he did wish to proceed pro se, and the court then discussed with Petitioner the potential ramifications of his decision and his responsibilities as a self-represented defendant. (Id. at 8-13; 17-20; 24-26; 32-42.) After this discussion and a further off-the-record conference between Petitioner and Mr. Gotkin, Petitioner again affirmed that he wished to proceed pro se, and the court found that he had knowingly and voluntarily waived his right to counsel. (Id. at 49-50, 53-54.) The County Court appointed Mr. Gotkin to provide Petitioner with legal assistance during the proceedings. (Id. at 54.)
The County Court started jury selection on January 10, 2012. (See Dkt. No. 17-1 at 232.)[2] The County Court explained the jury selection procedure to Petitioner, and Mr. Gotkin stated that he had explained the procedure to Petitioner before the proceedings. (Id. at 237-49.) Jury selection continued on January 12, 2012. (See Dkt. 17-1 at 331; Dkt. 17-2 at 115.) The prosecution peremptorily challenged Juror No. 5, a white female; Juror No. 9, a white male; and Juror No. 12, a black female. (Dkt. 17-2 at 27.)[3] Petitioner asked the court to identify Juror No. 12 and raised a Batson challenge to the prosecution's peremptory challenge to that juror. (Id. at 28.) In response to Petitioner's request, the court commented that “[o]rdinarily, [defendants] have to show there was a pattern of strikes if [they] want to invoke a Batson challenge, however, for the preservation of the Appellate record, I'll let [the prosecution] give a reason.” (Id.) The prosecution responded that “[Juror No. 12] spoke in a very thick accent . . . [t]his is a case that is going to involve D.N.A. evidence which is not ridiculously complex, but could be difficult to understand for people that [don't] speak English fluently and regularly.” (Id. at 28, 31.) The County Court then stated that there was (Id. at 31-32.)
Jury selection continued on January 13, 2012. (See Dkt 17-2 at 115.) The prosecution peremptorily challenged three potential jurors: Juror No. 1, an Asian male; Juror No. 3, a black female; and Juror No. 14, a white male. (Id. at 168-69.)[4] Petitioner raised a Batson objection as to the prosecution's challenge to Juror No. 3. (Id. at 169-71.) Petitioner alleged that the...
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