Coleman v. Chappius
| Decision Date | 19 November 2020 |
| Docket Number | 12-CV-477 (MKB) (ARL) |
| Parties | SHAWN COLEMAN, Petitioner, v. PAUL CHAPPIUS, Superintendent of Elmira Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Shawn Coleman, proceeding pro se, brings the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet. for Writ of Habeas Corpus ("Pet.") 1, Docket Entry No. 1.)1 Petitioner's claims arise from a judgment of conviction following a jury trial in the Supreme Court of New York State, Nassau County, on charges of second-degree robbery, third-degree robbery, and resisting arrest. (Tr. of Proceedings before the Hon. Donald DeRiggi dated Feb. 7, 2003 ("Tr.") 1059:12-16, annexed to Resp't Answer as Ex. 2, Docket Entry No. 7-2.) Petitioner was sentenced to a determinate term of fifteen years on the second-degree robbery conviction, a concurrent indeterminate term of three and one-half to seven years on the third-degree robbery conviction, and a term of one year on the resisting-arrest conviction. (Tr. of Sentencing Proceedings before the Hon. Donald DeRiggi dated May 5, 2003 ("Sent'g Tr.") 9:7-15, annexed to Resp't Answer as Ex. 3, Docket Entry No. 7-3.) Petitioner appealed hisconviction to the New York Supreme Court Appellate Division, Second Department ("Appellate Division"). People v. Coleman, 829 N.Y.S.2d 200, 200 (App. Div. 2007). The Appellate Division vacated Petitioner's conviction for third-degree robbery but affirmed the judgment of conviction as modified. Id. at 201.
In the instant petition, Petitioner seeks a writ of habeas corpus on the following four grounds: (1) denial of the right to retain counsel of his choosing; (2) erroneous application of New York County Law § 722 (); (3) failure to conduct a Wade hearing2 with respect to the in-court identification of Petitioner by Curtis Ericsson; and (4) denial of the right to the effective assistance of trial counsel because his attorney both (a) failed to submit an alibi notice and (b) failed to pursue a line-up identification. (Pet. 5-10.) For the reasons discussed below, the Court denies the petition.
On October 11, 2004, while Petitioner's direct appeal was pending before the Appellate Division, he filed his first of four motions in Nassau County Court, pursuant to New York Criminal Procedure Law § 440.10, to vacate his conviction, which the county court denied on March 30, 2005. (First 440 Motion ("First 440 Motion") 1, 70-71, annexed to Resp't Answer as Ex. 5, Docket Entry No. 7-5.) Petitioner appealed the denial of the First 440 Motion to the Appellate Division, which granted leave to appeal and consolidated the 440 appeal with the direct appeal from Petitioner's judgment of conviction. (Id. at 101, 105.) In an order dated February 6, 2007, the Appellate Division vacated Petitioner's conviction for third-degree robberyand affirmed the judgment of conviction as modified. Coleman, 829 N.Y.S.2d at 201. By separate order dated the same day, the Appellate Division affirmed the order denying the First 440 Motion. People v. Coleman, 827 N.Y.S.2d 878, 878-79 (App. Div. 2007). Petitioner subsequently sought leave to appeal to the New York Court of Appeals from both the order partially affirming his judgment of conviction and the order denying his First 440 Motion and leave to appeal was denied on July 31, 2007. People v. Coleman, 9 N.Y.3d 864, 864 (2007).
On November 14, 2007, Petitioner filed a second 440 motion to vacate his conviction. (Second 440 Motion ("Second 440 Motion"), annexed to Resp't Answer as Ex. 7, Docket Entry No. 7-7.) The county court denied the Second 440 Motion on December 24, 2007, and the Appellate Division denied Petitioner's motion for leave to appeal on March 13, 2008. (Id. at 168-69, 208); People v. Coleman, No. 2008-1080, 2008 WL 660741, at *1 (N.Y. App. Div. Mar. 13, 2008).
On July 25, 2008, Petitioner filed a third 440 motion to vacate his conviction. (Third 440 Motion ("Third 440 Motion"), annexed to Resp't Answer as Ex. 8, Docket Entry No. 7-8.) The county court denied the Third 440 Motion on July 8, 2009, and the Appellate Division denied Petitioner leave to appeal the denial on January 7, 2010. (Id. at 91-92, 103.)
On February 24, 2011, Petitioner filed a fourth 440 motion to vacate his conviction, which the county court summarily denied on December 20, 2011.3 (Fourth 440 Motion ("Fourth 440 Motion") 69-70, annexed to Letter Curing Defect dated May 18, 2012, as Ex. 9, Docket Entry No. 8-1.)
Finally, Petitioner twice moved in the Appellate Division for a writ of error coram nobis, claiming that his appellate counsel was ineffective, and was twice denied. People v. Coleman, 929 N.Y.S.2d 761, 762 (App. Div. 2011); People v. Coleman, 902 N.Y.S.2d 415, 415 (App. Div. 2010).
i. Incident and arrest
On December 18, 2000, in the hallway of a Best Western Hotel in Hempstead, Nassau County, New York, Petitioner and an accomplice, Judah Abraham, threatened to kill Curtis Ericsson and forced him into his room while holding him in a headlock with a sharp object to his back. (Tr. 352:6-16, 354:19-24.) They stole money and other articles from Ericsson's person and from his room, pushed him to the floor, and placed the bed on top of him. (Id. at 357:24-358:11, 359:5-7.) A video surveillance camera captured photographs of Petitioner in the hotel lobby. (Id. at 359:17-363:19.)
On December 31, 2000, Petitioner was apprehended in Rockville Centre, New York, following an incident at a motel, a chase, and a struggle with police. (Id. at 441:12-447:24, 471:12-21.) Petitioner was arrested and signed a written statement confessing to his involvement in the December 18, 2000 robbery of Ericsson. (Id. at 546:14-548:5.)
ii. Charges and trial
For the crimes committed on December 18, 2000, Petitioner was charged with first-degree robbery pursuant to New York Penal Law § 160.15(3) and second-degree robbery pursuant to New York Penal Law § 160.10(1). (Resp't Answer ¶ 7, Docket Entry No. 7.) For the crimes committed on December 31, 2000, Petitioner was charged with two counts of attempted second-degree robbery pursuant to New York Penal Law §§ 110.00, 160.10(1)-(2)and resisting arrest pursuant to New York Penal Law § 205.30. (Id.) The trial proceedings were held in Nassau County Court before the Honorable Donald DeRiggi (the "Trial Court"). (Tr. 1.)
On January 10, 2001, the Nassau County Legal Aid Society was relieved as assigned counsel, and Richard Reisch appeared for Petitioner as retained counsel. (Resp't Answer ¶ 8.) On March 14, 2002, because the Trial Court believed that Petitioner could no longer afford to pay Reisch, the court assigned Reisch to represent Petitioner under New York County Law § 722, Nassau County's assigned counsel plan. Proceedings before the Hon. Donald DeRiggi dated Nov. 14, 2002 ( ) 3:21-23, annexed to Resp't Answer as Ex. 1, Docket Entry No. 7-1.)4
On November 14, 2002, Reisch sought to be relieved as counsel. (Id. at 5:11-13.) Although Petitioner did not object to Reisch's petition to withdraw as counsel, stating that he had lost confidence in Reisch and refused to pay him additional money, (id. at 5:14-6:3), the Trial Court determined that there was "no legal basis for the relief of counsel" and denied the request, (id. at 6:7-6:12).
At trial on February 4, 2003, Petitioner moved the Trial Court to relieve Reisch as his attorney. (Id. at 8:25-9:8.) Petitioner stated that he wanted to proceed pro se and that he had another attorney that would appear to represent him the next day. (Id. at 8:25-9:22.) The Trial Court denied Petitioner's request to proceed pro se as untimely. (Id. at 10:18-21.) No new attorney ever appeared to represent Petitioner. (See id.)
On February 5, 2003, several jurors asked to be excused from jury duty after they witnessed Petitioner reading their juror questionnaires. (See id. at 14:24-15:4.) Petitioner'scounsel requested a mistrial, which was granted, and a new trial commenced immediately. (Id. at 13:22-15:14.)
At the new trial, which commenced on February 5, 2003, Petitioner was represented by Reisch ("Trial Counsel"). (Tr. 2:9-10.) Trial Counsel called Nicole Hackett, Petitioner's then-girlfriend and later wife, as a defense witness. (Id. at 659:13-660:15.) Petitioner and Hackett believed that Hackett would be called as an alibi witness, but Trial Counsel apparently did not intend for Hackett to offer alibi testimony, having never served a notice of alibi, which resulted in the Trial Court disallowing alibi testimony from Hackett. (See id. at 657:23-658:25.)
iii. Jury verdict and sentence
On February 19, 2003, the jury found Petitioner not guilty of first-degree robbery but convicted him of second-degree robbery and third-degree robbery in connection with the December 18, 2000 incident. (Tr. 1059:9-20.) With regard to the December 31, 2000 incident, the jury found Petitioner guilty of resisting arrest but was unable to reach a verdict on the related attempted robbery counts, which were later dismissed. (Id. 1065:16-1066:1.)
On May 5, 2003, Petitioner was sentenced to a determinate term of imprisonment of fifteen years on the second-degree robbery conviction, a concurrent indeterminate term of three and one-half to seven years on the third-degree robbery conviction, and a term of one year on the resisting-arrest conviction. (Sent'g Tr. 10:1-15.)
iv. Direct appeal
Petitioner appealed his conviction to the Appellate Division, arguing that: (1) Trial Court erred in excluding a hearsay statement made by non-testifying codefendant Judah Abraham that exculpated Petitioner; (2) Trial Court erred in refusing to give a voluntariness instruction to the jury with respect to Petitioner's...
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