Brinson v. Walker
| Citation | 407 F.Supp.2d 456 |
| Decision Date | 05 January 2006 |
| Docket Number | No. 01-CV-0405.,01-CV-0405. |
| Parties | Jeremiah BRINSON, Petitioner, v. Hans WALKER, Respondent. |
| Court | United States District Courts. 2nd Circuit. United States District Court of Western District of New York |
Jeremiah K. Brinson, Auburn, NY, for Petitioner.
Stephen F. Gawlik, Assistant Attorney General, Buffalo, NY, for Respondent.
DECISION AND ORDER
Petitioner, Jeremiah Brinson ("Brinson"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court on charges of first degree robbery (N.Y. Penal Law § 160.15(3)) and third degree criminal possession of a weapon (N.Y. Penal Law § 265.02(1)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
Brinson's conviction stems from the alleged robbery of Jeremy M. Gavin ("Gavin"). Gavin, the complainant and the sole witness to the crime, testified that at about 1:30 a.m. on May 28, 1997, he was walking down Main Street in the City of Geneva after leaving a local bar, the Rum Runner. T.43.1 According to Gavin, a black man whom he did not know approached him and asked if he could spare a few dollars. T.44. Gavin stated that as he was attempting to extract a few bills from his wallet, the man grabbed at the wallet. T.45. Gavin testified that he "tried to defensively push him away" but "ended up sprawled on the ground." T.45. Gavin related that the man then pulled out a razor knife, raised it up about shoulder-height, bent down, picked up the money that had fallen out of the wallet (about $60) and started to walk away. T.46-47. Gavin stated that as the man drew the knife from his pocket, a piece of paper fell out; this turned out to be Brinson's Social Security card which Gavin brought to the police station when he reported the crime. Gavin testified that he followed his assailant "for a little while" but "gave it up" because he "figured it was pretty much a lost cause" and he "didn't want to get hurt." T.48. Gavin described the person who robbed him as a black man wearing jeans, a white sweatshirt and a black baseball cap. T.52.
Shortly thereafter, Officer Mark Cirone ("Cirone") observed Brinson about one-tenth of a mile from the alleged robbery scene. Since Brinson matched the description given by Gavin, Cirone transported him to the police station where Gavin identified Brinson at a show-up identification procedure. The police found Brinson to be in possession of a razor knife which Gavin eventually identified as the knife with which he was threatened. However, Brinson did not have any money on him. Brinson's Social Security number was confirmed during the arrest procedure; it was the same number as the one on the card Gavin claimed fell out of the robber's pocket. See T.91-112.
Brinson's version of the events of that evening as told by him and his supporting witness was poles apart from Gavin's version. Defense counsel called Joel Richardson ("Richardson") who testified that on the night of the incident, he was driving around downtown Geneva with Brinson and Shawn Dunson ("Dunson"). T.126. As they passed by the Rum Runner, a "white dude" asked if he could get a ride to Pulteney Street. They agreed, and the man got into the car. According to Richardson, the man never identified himself. T.126. Richardson testified that he asked the passenger for gas money, but the man said that he did not have any. T.127. Richardson then dropped the man off and drove away. Defense counsel did not ask Richardson whether the white man to whom he had given a ride was present in the courtroom. The prosecutor then moved to have the testimony stricken in its entirety, and the court agreed. Defense counsel did not object or attempt to recall the witness. T.128.
Next, Brinson testified that as he was driving around with Richardson and Dunson, they encountered Gavin coming down the street. T.137. According to Brinson, Gavin came up to him and said, "[C]ould you hook me up with a dime bag of weed[?]" T.138. Gavin explained that he and his girlfriend had just broken up, and his "connection" was out of town. T.138. According to Brinson, Gavin got into the back seat of Richardson's car and sat next to Brinson. Brinson explained that he had taken his razor knife out of his back pocket and placed it on the car seat because he could not sit on the knife and was afraid of breaking it. T.141. Brinson testified that he used the knife, which he called a "carpet cutter" at his job at the Ramada Inn. T.141. When they got to Pulteney Street, Brinson got out of the car and put the knife back in his pocket. Gavin said he could only get a "nick" (a nickel bag) because he only had $5. At that point, Brinson became suspicious that Gavin was a "narc" and said, "[G]et away from me, man, I'm going home." T.142. Brinson then started to walk to his sister's house on Pulteney Street. According to Brinson, Gavin started following him saying, "[J]ust go half with me .... all I want to do is get high ... I'm having a bad night." T.143. At that point, Brinson spied a police car and was worried what the police would think if they saw a "black and white guy [sic] walking around" at that late hour. T.144. Brinson testified that Gavin, who was still following him, "made some kind of motion" to the police. Brinson said to Gavin, "[Y]ou are a narc, aren't you" and kept walking hurriedly away. T.144. Gavin then yelled after him, "[Y]ou Nigger, come here, Nigger[.]" T.145. Brinson testified that he was walking home when a police car pulled up and an officer took him into custody because he fit the description of the perpetrator of a robbery that had been reported earlier.
Brinson also testified that he had lost his Social Security card approximately one month prior to the incident, and that he had requested and been re-issued a new one because he needed identification for his job at the Ramada Inn, where he was employed at the time of the incident. T.150. Brinson claimed that he did not have the new card on his person that night. T.150-51. He also testified that the card found at the scene and introduced into evidence was the card that had been missing for a little over a month. T.174. He admitted that the card appeared to be in the same condition as when he had lost it. T.174-75.
The jury convicted Brinson of both counts of the indictment. On the robbery charge, he was sentenced to a determinate term of imprisonment of eighteen years with a five-year concurrent sentence on the criminal possession charge.
On direct appeal, the Appellate Division of New York State Supreme Court unanimously affirmed his conviction on October 1, 1999. People v. Brinson, 265 A.D.2d 879, 697 N.Y.S.2d 221 (App.Div. 4th Dept.1999). The New York Court of Appeals denied leave to appeal on December 3, 1999. People v. Brinson, 94 N.Y.2d 860, 725 N.E.2d 1097, 704 N.Y.S.2d 535 (N.Y.1999).
Represented by counsel, Brinson collaterally attacked his conviction by means of an application pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court. Counsel argued that trial counsel was ineffective in failing to demand a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), to suppress Gavin's identification of Brinson on the basis that the show-up identification procedure conducted at the police station was inherently suggestive. Counsel also argued that trial counsel should have asserted that Brinson's arrest was without probable cause; should have introduced documentation from the Social Security Administration that Brinson had requested a new Social Security Card prior to the date of the alleged robbery; and failed to properly question defense witness Joel Richardson, which led to the striking of Richardson's testimony on motion of the prosecutor. This motion was denied on January 6, 1999 without opinion in a summary order. It appears that counsel filed a notice of appeal, but apparently leave to appeal the denial of the C.P.L. § 440.10 motion was not sought.
In January 2001, represented by counsel, Brinson challenged the effectiveness of his appellate counsel in an application for a writ of error coram nobis and argued that the prosecutor's cross-examination of him was improper. This application was summarily denied by the Appellate Division on May 2, 2001. Brinson's habeas petition followed on June 7, 2001. During the petition's pendency, Brinson filed another coram nobis application on November 9, 2001; it was denied on April 26, 2002.
As grounds for habeas relief, Brinson states that he Upon review of the foregoing pleadings, the Court concludes that Brinson has raised the following grounds for federal habeas relief: (1) improper limitation of cross-examination; (2) denial of effective assistance of trial counsel; (3) prosecutorial misconduct on summation; (4) harsh and excessive sentence and vindictive sentence; (5) insufficiency of the evidence with regard to the charge of first degree robbery; (6) and ineffective assistance of appellate counsel. Respondent answered the petition and interposed the defenses of untimeliness2 and non-exhaustion. For the reasons set forth below, the petition is granted.
Respondent raises the defense of non-exhaustion with regard to a number of Brinson's claims. In particular, respondent argues that the ineffective assistance of counsel claims and the claim of newly discovered evidence3 brought in support of the C.P.L. § 440.10 motion are not exhausted because Brinson failed to...
To continue reading
Request your trial
-
Brinson v. Walker
...district court found that the Appellate Division "unreasonably applied clearly established Supreme Court precedent." Brinson v. Walker, 407 F.Supp.2d 456, 478 (W.D.N.Y.2006). The court concluded that the limitations placed on cross-examination on Gavin's racism "deprived the defendant of cr......