Brown v. Lee
| Decision Date | 30 August 2011 |
| Docket Number | 10 Civ. 7605 (RWS) |
| Parties | DEVON BROWN, Petitioner, v. WILLIAM LEE, Superintendent, Cl Correctional Facility Respondent, |
| Court | U.S. District Court — Southern District of New York |
On October 4, 2010, Devon Brown ("Brown" or "Petitioner") filed this action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus to challenge his allegedly unconstitutional criminal conviction. For the reasons stated below, that petition is denied.
In January 2004, police initiated a long-term investigation to address a rise in violent crime in the Edenwald Housing Project in Bronx County. Sergeant Marco Trujillio("Trujillio"), a fifteen year veteran of the New York City Police Department, was assigned to the investigation and instructed to purchase narcotics in an undercover capacity. Detective Anthony Gonzalez and Sergeant Daniel VonDollen participated in the investigation as part of a field team that monitored and recorded Sergeant Trujillio's activities. Police developed a confidential informant to introduce the undercover Trujillio to persons of interest. According to the Government, prior intelligence revealed that Petitioner was a person of interest. On February 19, 2004, Sergeant Trujillio observed Petitioner while undercover but did not meet him. Thereafter, Petitioner sold drugs to Trujillio on six occasions (February 21, 2004; February 28, 2004; March 2, 2004; March 9, 2004; March 11, 2004; and March 18, 2004).
By an indictment 2923/2004, filed on June 28, 2004, a Bronx County Grand Jury charged that Petitioner and eighteen co-defendants committed 100 offenses. Petitioner was named in 22 counts. On October 2, 2006, after two mistrials, Petitioner was convicted by jury of six counts of the criminal sale of narcotics ranging in severity from the first to the third degree. He was sentenced to seventeen years to life for thefirst degree conviction, eight years to life for the second degree conviction, and five to ten years for each of the four third-degree convictions.
At trial, Sergeant Trujillio, Detective Gonzalez, and Sergeant VonDollen testified for the Government. Also, audio and video tape recordings of Petitioner's transactions with Truj illio admitted at trial after authentication.
Petitioner, on the other hand, testified that he first met Sergeant Trujillio on February 19, not February 21, 2004. Although he agreed with Sergeant Trujillio's testimony that the first drug sale occurred on February 21, Petitioner testified that the sale was prearranged.
Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, First Department. On appeal, Petitioner argued that the Court had issued incorrect jury instructions on the issue of agency and that the prosecutor had acted improperly by misstating the law of agency, bolstering the testimony of prosecution witnesses, and intentionally attempting to expose Petitioner's previous incarceration.
The Appellate Division unanimously affirmed the judgment on June 3, 2008 in People v. Brown, 52 A.D.3d 204 (1st Dept. 2008). The Court upheld the jury instructions regarding the agency defense, finding that the trial court had properly instructed the jury to consider whether Petitioner expected a benefit in return for his misconduct. Id. at 205-06. The Appellate Division noted that this was the only challenge to the jury instructions which was preserved for appeal, and that Petitioner had failed to preserve his prosecutorial misconduct claims. Id. at 206. In dicta, the appellate court noted that the prosecutor's alleged misconduct in bolstering a witness and failing to redact an audiotape was harmless. Id. On September 17, 2008, Petitioner's application for leave to appeal to the Court of Appeals was denied. See People v. Brown, 11 N.Y.3d 786 (2008).
On June 30, 2008, Petitioner filed a motion for resentencing pursuant to the Rockefeller Drug Law Reform Act, amended Penal Law § 70.71. The motion was granted on July 15, 2009, and Petitioner was resentenced to a determinate term of 17 years' imprisonment and five years' supervised release for thesale of a controlled substance in the first degree and to a determinate term of 8 years' imprisonment and five years' supervised release for the sale of a controlled substance in the second degree. These sentences are to run concurrently with each other and with Petitioner's prior sentences for sale of a controlled substance in the third degree. Petitioner filed an appeal from this resentencing on July 24, 2009, but that appeal was not perfected.
On April 21, 2009, Petitioner moved pursuant to NYCPL § 440 to vacate the judgment against him in state court, alleging fraud by the prosecutor and failure by the trial court to protect Petitioner's due process rights. Petitioner also asserted his innocence.
On March 22, 2010, the state trial court (the "NYCPL § 440 court") denied Petitioner's motion to vacate the judgment against him. It rejected Petitioner's claim that the prosecutor allowed perjured testimony, as Petitioner had failed to raise that issue on direct appeal. The NYCPL § 440 court denied Petitioner's claim that the prosecution had failed to turn over material exculpatory evidence on the grounds that the records atissue were Petitioner's own records which he already had in his possession and introduced at trial. The NYCPL § 440 court denied Petitioner's claim that the trial court had failed to protect his due process rights, noting that the court was not required, sua sponte, to order the testing of properly authenticated audio and video tapes. The court also rejected Petitioner's claim of innocence, citing a lack of evidence supporting Petitioner's contention. On August 31, 2010, Petitioner's application for leave to appeal the rejection of his NYCPL § 440 motion to the Court of Appeals was denied.
Petitioner then filed the present petition for a writ of habeas corpus on October 5, 2010. The petition was considered fully submitted after Petitioner filed his Traverse on May 2, 2011.
A federal court may grant a writ of habeas corpus if it determines that the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determinedby the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"The phrase "clearly established Federal law, as determined by the Supreme Court of United States' refers to %the holdings, as opposed to the dicta, of Court's decisions as of the time of the relevant state-court decision.'" Overton v. Newton, 295 F.3d 270, 275-76 (2d Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2002)).
A state court decision can be "contrary to" clearly established Supreme Court precedent where the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or where state court confronts a set of facts materially indistinguishable from those addressed by the Supreme Court and nevertheless arrives at a different result. See Williams, 529 U.S. at 405-06, 411-13; see also Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams, 529 U.S. at 405-06); Overton, 295 F.3d at 275 (citing Williams, 529 U.S. at 413).
With respect to the "unreasonable application" inquiry, a writ may issue "if the state court correctly identifies the governing legal principles from [the Supreme Court's] decisions but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 407-10); see Williams, 529 U.S. at 407-10, 413; Overton, 295 F.3d at 275 (citing Williams, 529 U.S. at 413). In applying this standard, a "federal habeas court... should ask whether the state court's application of clearly established Federal law was objectively unreasonable." Williams, 529 U.S. at 409; see Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 409-10); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001) (citing Williams, 529 U.S. at 409).
Thus, as the Second Circuit noted in Jones v. Stinson, 229 F.3d 112 (2d Cir. 2000), a federal habeas application will be denied even in cases where the state court is incorrect, as long as the state court has not acted unreasonably. See 229 F.3d at 119-21 ().
When assessing an application for a writ of habeas corpus, a federal court "must defer to state court findings of fact, mixed findings of fact and law, and conclusions of law." Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001) (citing 28 U.S.C. § 2254(d),(e)). "A state court determination of a factual issue is... presumed to be correct... and is unreasonable only where the petitioner meets the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Overton, 295 F.3d at 275 (citing 28 U.S.C. § 2254 (e) (1)) (internal citations omitted).
Petitioner has pointed to four flaws in his criminal trial, all of which he claims are grounds to vacate the judgment against him. First, he contends that the trial court, encouraged by the prosecution, gave inaccurate instructions to the jury on the issue of agency. Second, he alleges prosecutorial misconduct based on the prosecutor's allegedmisinforming of the jury as to the agency defense, bolstering of her witness, and attempt to reveal that Petitioner had been previously incarcerated. Third, he alleges that one of the prosecution's witnesses, Trujillio, falsified his testimony, and that the prosecution put Trujillio on the stand knowing that he would...
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