Brown v. Lee

Decision Date25 September 2017
Docket Number14-cv-5354 (SJF)
PartiesDONALD T. BROWN, JR. Petitioner, v. WILLIAM LEE, Superintendent, Respondent.
CourtU.S. District Court — Eastern District of New York
OPINION AND ORDER

FEUERSTEIN, District Judge:

Presently before the Court is Petitioner Donald T. Brown, Jr.'s ("Petitioner" or "Brown") Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody ("Petition"), which Respondent William Lee, Superintendent ("Respondent"), opposes. See Docket Entry ("DE") [1], [11]. For the reasons set forth herein, Brown's Petition is denied.

I. BACKGROUND
A. Criminal Activity
1. Underlying Criminal Activity and Conviction

At approximately 11:45 p.m. on September 3, 1998, Brown broke into a female neighbor's home while the woman was asleep in bed. See Affirmation of Karla Lato ("Lato Aff."), DE [11], ¶ 4. Brown repeatedly hit the woman over the head and face and threatened to kill her if she screamed. Id. For approximately two (2) hours, Brown raped and sodomized the victim, biting her face, nipples, legs, and back. Id. During the attack, Brown stated that he loved the victim's daughter, and that if he "couldn't have the victim's daughter, he would have the victim instead." Id. The victim told police officers that she recognized her assailant to be Brown, stating that Brown was both her neighbor and her daughter's schoolmate. Id. As Petitioner left the victim's home, he took bottles of the prescription drugs Lotrel and Zoloft from the victim's medicine cabinet. Id. Police officers identified Brown's fingerprints and underwear in the victim's home, and a canine unit tracked Brown to a nearby playground where he was found passed out, wearing the victim's blouse, and in possession of the victim's prescription bottles. Id. Brown was taken to the police station, where he told officers that he rode his bicycle to the victim's home. Id. Officers subsequently recovered Brown's bicycle from the victim's home, and Brown's father identified the bicycle as belonging to Brown. Id.

Pursuant to Indictment No. 2088-98, Petitioner was charged with: (i) one (1) count of first degree burglary in violation of N.Y. Penal Law § 140.30; (ii) one (1) count of first degree rape in violation of N.Y. Penal Law § 130.35; (iii) one (1) count of first degree sodomy in violation of N.Y. Penal Law § 130.50; (iv) eight (8) counts of second degree assault in violation of N.Y. Penal Law § 120.05; and (v) four (4) counts of aggravated sexual abuse in violation of N.Y. Penal Law § 130.70. Id. at ¶ 5. In relation to a separate incident on June 27, 1998, pursuant to Indictment No. 1759-98, Petitioner was also charged with one (1) count of second degree burglary in violation of N.Y. Penal Law § 140.25. Id. On April 5, 1999, under the advisement of counsel, Brown entered into a negotiated plea and sentencing agreement, pleading guilty to: (i) second degree burglary pursuant to Indictment No. 1759-98; and (ii) first degree burglary, rape, and sodomy pursuant to Indictment No. 2088-98. Id. at ¶ 6. Brown waived his right to appeal and, on May 9, 1999, he was sentenced to a total aggregate term of imprisonment of thirty (30) years, including three (3) concurrent terms of twenty-five (25) years of imprisonment for Indictment No. 2088-98, and five (5) years of imprisonment for Indictment No. 1759-98. Id. Although Brown filed a Notice of Appeal on May 24, 1999, the resolution of that appeal is unclear based on the record before the Court, and Brown does not dispute that he failed to raise the grounds for relief identified in the instant Petition on direct appeal. Id. at ¶ 7; see also Pet. § 12.

2. Post-Conviction Proceedings

On August 18, 2003, Brown filed a motion seeking to reduce his sentence in the interest of justice in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (the "Second Department"). Lato Aff. ¶ 7. On November 14, 2003, the Second Department denied Petitioner's motion seeking to reduce his sentence. See People v. Brown, 1 A.D.3d 1066, 767 N.Y.S.2d 654 (2d Dep't 2003). Brown sought leave to further appeal the Second Department's denial of his motion to reduce his sentence, which the Court of Appeals of New York denied on January 27, 2014. See People v. Brown, 1 N.Y.3d 595, 776 N.Y.S.2d 227 (2004). On November 29, 2011, Petitioner filed an application in the Supreme Court of the State of New York, Suffolk County ("Supreme Court, Suffolk County") seeking to have post-supervision release removed from his sentence imposed under Indictment No. 1759-98 on the grounds that "on May 5, 1999 [he] was not properly sentenced to certain incarceratory terms." See Pet. § 11(a). Although the Supreme Court, Suffolk County removed the portion of Brown's sentence providing for post-supervision release, the term of incarceration provided for at the May 5, 1999 sentencing remained unchanged. Id. On December 27, 2011, Petitioner filed a second Notice of Appeal. See Lato Aff. ¶ 8. Brown failed to perfect his appeal, and, on July 26, 2013, the Second Department marked the appeal as abandoned. Id.

On March 3, 2014, Petitioner filed a motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10 in the Supreme Court, Suffolk County (the "Motion to Vacate"). Id. at ¶ 9. In his Motion to Vacate, Brown argued that: (i) his guilty plea was not knowing, intelligent, and voluntary; (ii) he received ineffective assistance of counsel; and (iii) he was actually innocent of the crimes of which he was convicted and sentenced. Id. at ¶¶ 9-11. In moving to vacate his conviction, Petitioner argued that he "suffered a serious traumatic brain injury as a child, suffers bipolar disorder and, due to drug and alcohol abuse, suffered from blackouts." See Pet. Ex. A. With respect to hisclaim for ineffective assistance of counsel, Petitioner wrote that his claim was "based upon a waiver of a suppression issue and failure to investigate his medical issues as a defense." Id. On May 12, 2014, the Supreme Court, Suffolk County, denied Petitioner's Motion to Vacate in its entirety. Id. With respect to his guilty plea, the court held that, when he pled guilty, Petitioner "indicated that his plea was voluntary, knowing and intelligent," and the allocution "was proper and sufficient to establish the elements of the crime plead." Id. With respect to his claim of ineffective assistance of counsel, the court held that there was "no deprivation of effective assistance of counsel to seek suppression, where it had little or no chance of success." Id. The court further held that the record established "that the Defendant received an advantageous plea in light of the strong case, negating any claim of ineffective assistance of counsel . . . ." Id. Finally, the court held that, "in light of the strong case, a claim of actual innocence must be rejected." Id.

On May 30, 2014, Petitioner sought leave to appeal the Supreme Court, Suffolk County's Order denying his Motion to Vacate to the Second Department. Id. at ¶ 12. On July 21, 2014, the Second Department denied Brown's application seeking leave to appeal. Id. On December 19, 2014, Petitioner filed a motion to renew his Motion to Vacate pursuant to N.Y. Crim. Proc. Law § 440.10, claiming that People v. Grubstein, 24 N.Y.3d 500 (2014) "changed the law so that, 'a pro se defendant [] . . . is not barred from raising certain claims in a motion under CPL § 440.10 by his failure to raise it on direct appeal." Id. at ¶ 13. On February 2, 2015, the Supreme Court, Suffolk County, denied Brown's motion to renew, holding that "Brown misread the holding in Grubstein and because Brown was represented by counsel, a failure to raise an issue on direct appeal will bar consideration of a record based claim under CPL § 440." Id. On March 3, 2015, Petitioner sought leave to appeal the court's denial of his motion to renew to the Second Department. Id. at ¶ 14. On June 15, 2015, the Second Department denied Petitioner's application for leave to appeal. Id.

B. The Instant Petition

On September 8, 2014, Petitioner commenced this action by filing a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. DE [1]. According to Brown, he is entitled to a writ of habeas corpus pursuant to 28 U.S.C. § 2254 because: (i) he received ineffective assistance of trial counsel; (ii) he is actually innocent of the crimes for which he was convicted; and (iii) he was "highly intoxicated and was unable to form the requisite intent to commit the crimes of which he was convicted." Pet. § 12. Petitioner does not dispute that he failed to raise each of these grounds on direct appeal. Id. With respect to his claim that he received ineffective assistance of counsel, Brown argues, inter alia, that his trial counsel failed to: (i) investigate Petitioner's background to develop mitigating evidence; (ii) conduct a field investigation regarding the lack of DNA evidence identified on the rape kit or the victim; (iii) confront the victim with the lack of DNA evidence; (iv) raise the lack of DNA evidence at a Huntley hearing; and (v) discuss potential defenses with Petitioner. Id. With respect to his claim that he is actually innocent of the crimes for which he was convicted, Brown argues that: (i) the evidence against him was "highly circumstantial"; and (ii) the prosecutor masked the amount of DNA that was allegedly found in Brown's underwear. Id.

On September 24, 2014, the Court ordered Respondent to show cause, by filing a Return to the instant Petition, why a writ of habeas corpus should not be issued pursuant to 28 U.S.C. § 2254. DE [3]. On September 29, 2015, Respondent filed its Return in opposition to Brown's Petition. DE [11]. According to Respondent, Petitioner's claims are barred by the one (1)-year statute of limitations pursuant to 28 U.S.C. § 2244. See Respondent's Memorandum of Law ("Resp.'s Opp'n"), DE [11-1], at 3-5. Respondent further argues that, even if Petitioner's claims...

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