Copeland v. Walker, 97-CV-2082 (ERK).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation258 F.Supp.2d 105
Docket NumberNo. 97-CV-2082 (ERK).,97-CV-2082 (ERK).
PartiesPhilip COPELAND, Petitioner, v. Hans G. WALKER, Superintendent, Auburn Correctional Facility, Respondent.
Decision Date15 April 2003

Phillip Copeland, 89-A-5229, Great Meadow Prison, Comstock, NY, for petitioner.

John M. Castellano, District Attorney, Queens County, Kathleen P. O'Leary, Kew Gardens, NY, for respondent.

CORRECTED MEMORANDUM & ORDER

KORMAN, Chief Judge.

In the early morning hours of February 26, 1988, a young and newly appointed New York City Police Officer, Edward Byrne, sitting in his patrol car outside the home of a witness he was assigned to protect, was shot five times in the head from a distance of two feet. Officer Byrne died instantly. The killing was apparently meant to send a message to law enforcement authorities from Howard "Pappy" Mason, one of two Queens drug lords who were incarcerated at the time. Petitioner, Philip Copeland, was convicted by a jury sitting in New York State Supreme Court of carrying out this crime along with his co-defendants Todd Scott, David McClary, and Scott Cobb. Howard "Pappy" Mason was convicted here for his role in the offense. See United States v. Nichols, 56 F.3d 403 (2d Cir.1995).

The testimony adduced at trial established that Officer Byrne's execution-style murder was planned by petitioner and his co-conspirators on February 25, 1988, in the home of Roger Philips, defendant Todd Scott's uncle. Two witnesses to that meeting testified that Todd Scott informed Cobb and Copeland that "the boss" had put out an order to kill a cop, for which the participants would earn $8,000. Cobb and Copeland nodded in response. Scott relayed this information from David McClary, who received the actual order from Pappy Mason. Petitioner stated that Mason was "pissed off and wanted to see on television that a cop got "iced." Petitioner, Scott and Cobb drew straws to determine who would perform the actual shooting, after which petitioner indicated that Cobb was to get the guns from another gang member and also provide the car.

Rachel Moore, an eyewitness to the shooting, testified that she saw petitioner and defendants McClary and Scott in an old yellow car. She was familiar with petitioner for several years and was also able to identify the car she saw as a 1979 Dodge Diplomat with Alabama license plates that was recovered by police. Petitioner's fingerprints were recovered from a piece of paper inside the car used by the killers. Moore, who was standing approximately three houses from Officer Byrne's patrol car at the time of the murder, clearly identified the same yellow car which Scott Cobb was driving. According to Moore, Scott got out of the car and approached the passenger side of the patrol car, while McClary and petitioner walked up to the driver's side. The three men reached into their pockets, pointed guns at the officer and started shooting.

Another eyewitness to the shooting was a man named Arjune, the witness Officer Byrne was assigned to protect. He testified that at approximately 3:30 a.m. on February 26, 1988, he was awakened by five gunshots coming from the front of his house. Arjune looked out the window and saw a "beat up" car, with the right rear hubcap missing, moving slowly down the block with Scott Cobb driving. He also noticed Todd Scott near the driver's side of the patrol car, another black male standing in the street, and a fourth person getting inside the car with Cobb. Scott had something in his hand, which he stuffed into his jacket pocket. All of the men jumped in the car and drove away.

In his defense, petitioner asserted that he spent the night of Officer Byrne's murder at the Kennedy Hotel with a woman named Audette Wills. Wills testified that she was picked up by petitioner and checked into the hotel at around 10:30 p.m. on February 25. They went to the Flagship Diner to place a takeout order and then returned to the hotel room at approximately 1:00 a.m. Wills testified that she was with petitioner the entire night and only fell asleep from 4:00 a.m. until approximately 7:00 a.m. the following morning. In a previous statement to the police, however, Wills testified that she had fallen asleep at 2:00 a.m., leaving petitioner ample time to reach the crime scene (only 1 mile from the hotel) before Officer Byrne's shooting at 3:30 a.m.

Petitioner was convicted on May 16, 1989, of Murder in the Second Degree (N.Y. Penal Law 125.25[1]) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law 265.03). He was sentenced to twenty-five years to life imprisonment on the murder count and five to fifteen years' imprisonment on the weapon count. On appeal, petitioner raised four claims. He argued that (1) the evidence was insufficient to prove beyond a reasonable doubt that he had killed Officer Byrne; (2) the trial judge improperly forced petitioner to remain in the courtroom during portions of the trial; (3) the trial court incorrectly determined that he had failed to make out a prima facie case of discrimination on the part of the prosecutor during voir dire; and (4) the prosecutor deprived petitioner of a fair trial by making inflammatory arguments in both his opening and closing statements.

In his Appellate Division brief, petitioner also adopted the claims of his co-defendants, Todd Scott and David McClary. Additional issues raised through these co-defendants include allegations that (1) the conduct of defense counsel for Scott Cobb and Todd Scott biased the trial judge against petitioner; (2) the trial court improperly marshaled the evidence in its charge to the jury; (3) the trial judge failed to excuse several prospective jurors for cause; and (4) the trial judge made disparaging remarks to the defense attorneys in the presence of the jury. Petitioner subsequently filed a pro se supplemental brief to the Appellate Division raising several additional claims. He argued (1) that the trial judge's evidentiary rulings, particularly the exclusion of expert testimony on the long term effects of crack use on a person's ability to recall, had deprived him of a fair trial; (2) that he was denied his right to be tried only upon the indictment of the Grand Jury; (3) that the trial court had erred by permitting the prosecution to elicit evidence of petitioner's involvement in certain uncharged crimes for the purpose of establishing motive for the killing of Officer Byrne; and (4) that the prosecutor failed to disclose in a timely manner information regarding several prosecution witnesses, in violation of New York Criminal Procedure Law Section 240.45 and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961).

The judgment of conviction was unanimously affirmed. People v. Copeland, 197 A.D.2d 629, 602 N.Y.S.2d 683 (2d Dep't. 1993). The Appellate Division held that the prosecutor had not impermissibly used race as a criterion in jury selection, and that the evidence adduced at trial was legally sufficient to establish petitioner's guilt beyond a reasonable doubt. The Appellate Division specifically found that the testimony presented by several of defendant's alibi witnesses were not improperly discredited by the trier of fact. It also found that petitioner's remaining contentions, including those raised in his pro se supplemental brief, were either unpreserved for appellate review or without merit.

Petitioner sought leave to appeal his conviction to the New York Court of Appeals. The leave letter, written by petitioner's attorney, read as follows:

Pursuant to section 460.20 of the Criminal Procedure Law, the above named Defendant-Appellant requests permission to appeal to the Court of Appeals from an order of the Appellate Division, Second Department, which affirmed his conviction

To facilitate review on appeal, the litigants' briefs and the court's order are enclosed herein.

Once a Judge has been assigned to this application, please send me his name. Thank you.

(Letter from Steven Feldman to Donald Sheraw, dated October 25, 1993). No additional correspondence was sent by petitioner to the Court of Appeals. Judge George Bundy Smith denied petitioner's leave application, see People v. Copeland, 82 N.Y.2d 848, 606 N.Y.S.2d 600, 627 N.E.2d 522 (1993), and petitioner did not seek a writ of certiorari from the United States Supreme Court.

More than three years later, in an affidavit dated March 19, 1997, petitioner moved in the Appellate Division, Second Department, for copies of the hearing and trial transcripts in his case, to file a motion for a writ of coram nobis. See People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987). Petitioner's motion was denied on April 24, 1997. No coram nobis petition was ever filed. On or about April 22, 1997, petitioner filed this petition for a writ of habeas corpus. The petition raises four claims: (1) that the proof at trial was legally insufficient to support his conviction; (2) that the prosecutor's inflammatory arguments in his opening and closing statements deprived petitioner of a fair trial; (3) that the prosecutor discriminated against African-Americans in jury selection; and (4) that the trial court improperly forced him to remain in the courtroom during portions of the trial. Petitioner also adopted the arguments presented by his co-defendants Todd Scott and David McClary in their respective Appellate Division briefs.

Respondent moved to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1) and Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997). Judge Raggi dismissed the petition on this ground on March 24, 1998. The Court of Appeals for the Second Circuit subsequently granted a certificate of appealability, vacated the dismissal in light of the decision in Ross v....

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