Chu v. Artus, 07 Civ. 6684 (RJS) (DF)

• Decision Date: 09 August 2011
• Docket Number: 07 Civ. 6684 (RJS) (DF)
• Parties: CHARLES CHU, Petitioner, v. DALE ARTUS, Superintendent, Clinton Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

CHARLES CHU, Petitioner, v. DALE ARTUS, Superintendent,Clinton Correctional Facility, Respondent.

07 Civ. 6684 (RJS) (DF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 9, 2011

REPORT AND RECOMMENDATION

TO THE HONORABLE RICHARD J. SULLIVAN, U.S.D.J.:

Pro se petitioner Charles Chu ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his state conviction, upon a jury verdict, of Murder in the Second Degree, in violation of N.Y. Penal Law § 125.25[1]; Conspiracy in the Second Degree, in violation of N.Y. Penal Law § 105.15; and Criminal Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law § 220.39[1]. Petitioner is incarcerated at the Clinton Correctional Facility.

In this proceeding, Petitioner raises a number of separate grounds for habeas relief. (See Memorandum of Law in Support of Habeas Corpus Petitioner, dated Jan. 1, 2008 (Dkt. 9) ("Amended Petitioner" or "Am. Pet.").) The Superintendent of the Clinton Correctional Facility ("Respondent")¹ argues that the Amended Petition should be dismissed in its entirety, on the grounds that the claims are unexhausted, procedurally barred, not cognizable and/or without merit. (See Memorandum of Law in Opposition to Petition, dated Mar. 7, 2008 (Dkt. 13) ("Resp. Mem.").) For the reasons discussed below, I recommend that certain of Petitioner'sclaims, which have not been fully exhausted in the state courts, be deemed to be excised from his Amended Petition, and that the remainder of his claims be dismissed as either procedurally barred or without merit.

FACTUAL BACKGROUND

Based on the evidence presented by the prosecution at trial,² between August 1989 and June 1997, Petitioner was a member of a drug-selling organization, the Champion Crew (the "Crew"), working his way up in the organization from street salesman to manager. (See Trial Tr. at 3000-01, 3502; see also id. at 226-32.) The Crew was founded by Petitioner's uncle, Geoffrey Rodriguez ("Rodriguez") and Peter Chin ("Chin") in the late 1980s. (See id. at 2945-53, 3125-32, 3372-80.) The Crew began by selling cocaine out of the Champion Pool Hall near Avenue C and 8th Street, in Manhattan, but later expanded to other locations in Manhattan, Brooklyn, the Bronx and beyond, and switched from selling cocaine to "trademarked" brands of heroin. (See id. at 1189-97, 2955-57, 2970.) The Crew's operations led to the multiple shootings and killings, including the murder of William Rodriguez ("William"). (See id.)

The trial of Petitioner and his three co-defendants (Rodriguez and two other members of the Crew) was lengthy. The evidence presented by the prosecution, including the facts underlying the drug conspiracy, is aptly described in a March 15, 2004 Report and Recommendation by the Honorable Andrew J. Peck, U.S.M.J., recommending the denial of ahabeas petition by Rodriguez, in which he challenged his conviction and sentence. See Rodriguez v. Senkowski, No. 03 Civ. 3314 (LAP) (AJP), 2004 WL 503451 (S.D.N.Y. Mar. 15, 2004) (Report & Recommendation), adopted by Order, dated Mar. 15, 2004 (Dkt. 37). The facts will be addressed by this Court below, only to the extent necessary to consider the particular claims being raised by Petitioner in this proceeding.

A. Drug Sales at the Fourth Street Location

In the 1990s, the Crew controlled a heroine-selling location on East Fourth Street and Avenue B (the "Fourth Street location"). (Trial Tr., at 1903-05.) Sales were made from the hallway of 231 East Fourth Street, where police officers frequently found hypodermic needles and empty glassine bags. (Id. at 541-42, 552-53.) In connection with an ongoing investigation of narcotics activity and accompanying violence on the Lower East Side (and, in particular, the activities of the Crew), the New York City Police Department and the District Attorney's Office secured from the landlord of 231 East Fourth Street a trespass affidavit, which stated that no one but an occupant or a guest had a right to be inside. (Id. at 510-22, 552-53, 558.) The police conducted surveillance of the Fourth Street location and frequently arrested people who were carrying drugs in or near the building. (Id.)

On the evening of July 21, 1995, Police Officer Terrence Curran observed Petitioner enter and exit 231 East Fourth Street approximately eight times, each time remaining in the building for a minute or two. (Id. at 1860-61, 1870.) Some of those times, Petitioner entered and exited the building by himself. (Id.) Most of the time, however, Petitioner was first approached by an individual, with whom he would then enter the building; a few minutes later, they would exit together, after which the individual would leave. (Id. at 1861-62.) One of those individuals was Bridgett Hull ("Hull"), and, based on a radio description provided byOfficer Curran, another police officer stopped Hull, who was found to be carrying four glassines of heroin stamped "Original." (Id. at 1863-64, 1877.)

Later that evening, Officer Curran approached Petitioner and asked him what he was doing at 231 East Fourth Street. (Id. at 1866.) Petitioner responded that he had not been in the building. (Id. at 1867.) When pressed by Officer Curran, Petitioner stated that he was looking for a woman named "Tiffany," but he was unable to provide her last name or the apartment or floor where she lived. (Id. at 1866-68, 1877-80, 1882.) Officer Curran arrested Petitioner, who was in possession of $800. (Id. at 1880, 1882-83.)

B. Murder of William

At some point in 1995, William, in addition to working at the Fourth Street location on behalf of the Crew, also began to sell his own cocaine and heroin at that location. (Id. at 1903-05.) William also began "hanging around" with a rival group of neighborhood drug dealers. (Id. at 3004-05.) Later in 1995, Rodriguez and Petitioner made a delivery of heroin to the Fourth Street location's daily stash house, and, in the safe that was kept there, they discovered cocaine that they learned belonged to William. (Id. at 1905-08.) In addition, in late 1995 or early 1996, Rodriguez and Chin began to complain that the amount of money being turned over to them from the Fourth Street location had dropped drastically, and they began to suspect that William was either selling his own heroin or tampering with their drugs. (Id. at 2460-62, 3306-08.) To confirm their suspicions, Chin occasionally had someone purchase drugs at the Fourth Street location, and he found that these drugs were not the drugs that he and Rodriguez were selling. (Id. at 2462-63.)

In late 1995 or January 1996, Jehu Morales ("Morales"), a Crew member, saw Petitioner and another member of the Crew speaking to William. When Morales came back 10 to 15minutes later, William was gone, and Petitioner was yelling, "That motherfucker. . . He is going to get his." (Id. at 2228, 2302-05.) Also around that time, William frequently complained that Chin owed him around $13,000 and was not paying it back, and had many arguments with Chin. (Id. at 1424-26, 1502-03, 1768-70.) Eventually, Chin and Rodriguez "fired" William, after which the amount of money being turned over from the Fourth Street location increased. (Id. at 2462-64, 3309.) William continued to deal drugs at a location at Third Street and Avenue B and continued to complain that Rodriguez and Chin owed him money. (Id. at 1908.)

Two or three times, William and a man known as "Fat Tony" returned to the Fourth Street location and threatened and shot at Crew workers. (Id. at 1427-28, 3007-09.) In response, Rodriguez, Chin, Petitioner and another member of the Crew armed themselves and went to the Fourth Street location, but could not find William. (Id. at 3008.) Chin told his brother, Tony Chin ("Tony"), that, with respect to William, Chin was going to "put a stop to all of this." (Id. at 2636-37.)

Shortly thereafter, William told Anibal Rosa ("Rosa") that he was planning to rob the Fourth Street location's stash house on a particular day at 9:30 p.m., and warned Rosa not to be around. (Id. at 1429-31, 1503-06.) That night, Charles "Tank" Davis ("Davis"), the shift manager of the Fourth Street location, went to the stash apartment, where he found Petitioner and Ruby Colon handcuffed to the refrigerator. (Id. at 1431-32, 1505, 1910-13, 1945-46.) Petitioner called Rodriguez and Chin, and, when they arrived, Petitioner told them that two armed men in masks had entered the apartment and taken the safe containing drugs and money. (Id. at 1913-14, 2466.) Petitioner, Rodriguez and Chin believed that William was responsible. (Id.) Rodriguez and Chin vowed to get their money and drugs back. (Id. at 1913-14.)

William visited Rosa later that same night and asked Rosa to help repackage the stolen drugs, which Rosa did. (Id. at 1429-30.) William told Rosa about the robbery: William said that, near closing time, he had waited in his car while his two friends went into the stash house and robbed it. (Id. at 1429-33.) Rosa told William that he would have to kill Rodriguez and Chin or else Rodriguez and Chin would kill him and Rosa; William replied that he could not shoot Rodriguez or Chin. (Id. at 1436.)

After the robbery, Petitioner began to carry a gun and said that he wanted to get William. (Id. at 2465-67.) Rodriguez and Chin's original plan was "to kill all of" the people involved in the stash house robbery, but they eventually decided just to kill William because "he [was] the one that knew everything about us." (Id. at 3014.) Rodriguez, Chin and Petitioner drove around the neighborhood looking for William, and, whenever Tony saw William, Tony would page Rodriguez or Chin to alert them that William was in the area. (Id. at 2468, 3015.)

On January 30, 1996, Petitioner and Chin "met up" and rented a Lincoln Town Car. (Id. at 3018.) Chin and Petitioner picked up another member of the Crew, Carlos Cruz ("Cruz"), and drove to the Lower East Side to look for William. (Id. at 3019.) They spotted...