Cummins v. Lee
| Decision Date | 27 November 2019 |
| Docket Number | 10-CV-01026 (LDH) |
| Parties | GLEN CUMMINS, Petitioner, v. WILLIAM LEE, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Glen Cummins, proceeding pro se, petitions pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus on the grounds that he was denied effective assistance of counsel, the prosecutor engaged in misconduct, the trial court improperly charged the jury, and the evidence was insufficient to support his conviction. (Pet. 4, ECF No. 1.)
This petition arises out of a judgment of conviction entered against Petitioner in New York Supreme Court, Kings County, on charges of second-degree murder, first-degree burglary, and third-degree witness tampering.
At Petitioner's trial, Brenda Jones testified that, on the morning of April 2, 2003, when she was fourteen years old, she heard a knock at her family's apartment door and opened it to find a man pointing a gun at her. (Aff. Opp. Pet. Writ Habeas Corpus Ex. C ("Trial Tr.") 16:2-19.) The man was wearing black sweatpants, a black sweatshirt with the hood pulled up, and a bandana covering his face below the eyes. (Id. at 16:23-17:12.) Nonetheless, Jones recognized him from his "body structure" and "voice" as Petitioner, whom Jones had seen "around the neighborhood" and playing with her little brothers during the past "couple of years." (Id. at17:15-18, 18:9-20, 34:4-35:3, 66:21-67:6.) The man entered the apartment, proceeded to the bedroom where Alonzo Mack was sleeping, and shot him. (Id. at 11:8-12:1, 16:18-21, 114:7-10.) Jones ran to the back of the apartment and, using a nickname for Petitioner, said to her father, "Coolie just shot Alonzo." (Id. at 20:17-25.) Mack suffered seven gunshot wounds and died as a result. (Id. at 260:21-23, 264:20-24.)
When police arrived, Jones described the shooter but did not identify by name him "because [she] was under the influence of [her] father," who told her "don't say nothing" and warned that if she identified Petitioner "[she] [could] get killed." (Id. at 21:17-22:1, 72:1-8.) Approximately two days later, outside of her apartment building, Jones encountered Petitioner, who said, "Don't be snitching." (Id. at 22:2-19.) Jones understood the statement as a "threat" that Petitioner "would try to kill [her] or something." (Id. at 22:20-25.) The next day, Jones again encountered Petitioner, who said that, on the day Mack was killed, he had been in the hospital and "didn't have nothing to do with it, the killing." (Id.at 23:3-25.) Again, Jones understood the statement as a "threat." (Id. at 24:1-3.) Less than one week after the shooting, the Jones family moved out of their Brooklyn apartment "because it felt like [they] were in danger living there." (Id. at 70:24-25, 71:18-22.)
In July 2003, Jones informed a police detective, Charles Platt, that it was Petitioner who had shot Mack and subsequently threatened her. (Id. at 55:18-56:8, 246:7-13.) On May 14, 2004, Jones picked Petitioner out of a police lineup of six men and identified him as Mack's shooter. (Id. at 24:7-26:2.) Petitioner was placed under arrest and charged with one count of murder in the second degree, four counts of burglary in the first degree, one count of criminal possession of a weapon in the second degree, and one count of intimidating a witness in the third degree. (See id. at 225:15-23; Aff. Opp. Pet. Writ Habeas Corpus ¶ 5.)
Trial commenced on January 24, 2006. (Trial Tr. 1.) In addition to Jones and other witnesses, the People called Abdul Mohammed, who testified that Petitioner was a member of the Crips gang and Mack had been a member of the Bloods gang. (Id. at 269:17-270:14.) Mohammed further testified that, in early February 2003, Petitioner had shared with Mohammed his plan to kill Mack. (Id. at 278:11-281:6.) Specifically, Mohammed testified that Petitioner had told Mohammed he would "handle" Mack "187" and "rock him," which Mohammed understood to mean "kill him." (Id. at 280:12-281:6, 286:7-17.) Mohammed further testified that, on April 2, 2003, he encountered Petitioner, who was wearing a "[b]lack hoodie." (Id.at 287:22-288:5.) According to Mohammed, Petitioner said that "he [had] just put that work in" and "rocked [Mack] to sleep" and that the "187 [was] done." (Id. at 312:18-313:1.) Petitioner then showed Mohammed a .40-caliber handgun. (Id. at 290:14-17.) On cross-examination, defense counsel insisted that Mohammed had "talked about []187 . . . [and] all kinds of nonsense" but had never actually heard Petitioner say "I am going to shoot, kill this man." (Id. at 302:24-25.) Defense counsel further questioned Mohammed's motivations for cooperating with the district attorney's office. (Id. at 315:6-14.) Mohammed testified that he had received threatening messages from Petitioner and was "in danger." (Id. at 315:15-19.)
The People subsequently called Detective Phillip O'Rourke of the Kings County District Attorney's Office Gang Bureau as an expert on the gang terminology Mohammed had used in his testimony. (Id. at 339:19-22, 347:17-19.) Defense counsel entered a "most vigorous, . . . most strenuous objection" to O'Rourke's testimony on the grounds that it was irrelevant, immaterial, and prejudicial. (Id. at 344:20-23.) The trial court overruled the objection, reasoning that there was evidence in the record that Petitioner "not only made a threat but also indicated through language which is not normal language that he allegedly killed the deceased so. . . that [was] certainly evidence the jury [was] entitled to hear." (Id. at 346:8-13.) O'Rourke testified that the term "187," which originated out of California in reference to its penal law, is "used [nationally] by the Crips to identify a homicide." (Id. at 353:16-19, 354:2-14.) O'Rourke further testified that the phrase "put in work" is used by the Crips to mean "going out and committing assault, robbery, homicide, stabbing, things of this nature." (Id. at 355:15-20.) In addition, O'Rourke testified that the phrase "rock to sleep" is used by the Crips and other gangs to mean lulling someone into a "false sense of security." (Id. at 356:12-18.)
In summation, defense counsel questioned the reliability of Jones's testimony on the grounds that she was a "young girl traumatized by . . . living in [a] dysfunctional household" and had initially told the police she did not know the identity of Mack's shooter. (Id. at 368:16-369:22.) Defense counsel further urged the jury to discount Jones's testimony because the police had initially doubted Jones's statements. (Id. at 370:17-371:6.) The People argued that Jones always knew Petitioner was the shooter but was reluctant to immediately identify him out of fear for her safety and based on her youth and her father's instruction not to come forward. (Id. at 382:11-15, 394:4-14, 399:6-14.) The People further argued that Detective Platt "never once doubted" Jones's identification. (Id. at 400:3-12.)
On January 30, 2006, the court instructed the jury on three counts: murder in the second degree, burglary in the first degree, and tampering with a witness in the third degree. (Id. at 429:24-435:12.) On January 31, the jury returned a guilty verdict as to each count. (Id. at 447:4-12.) On April 28, Petitioner was sentenced to a prison term of twenty-five years to life for the murder count, a concurrent term of twenty-five years for the burglary count, and a consecutive term of two to four years for the witness intimidation count. (Ex. C Sentence Tr. 7:24-8:10.)
On direct appeal, Petitioner challenged his conviction on three grounds: (1) ineffective assistance of trial counsel for eliciting damaging testimony from two witnesses, opening the door to prejudicial testimony from the gang expert, and failing to ask for a limiting instruction with respect to the expert; (2) prosecutorial misconduct for eliciting prejudicial testimony from Jones that she was afraid of Petitioner and making improper remarks during the People's summation; and (3) insufficient evidence to satisfy the witness-tampering charge or, in the alternative, failure to properly charge the jury on witness intimidation. The Appellate Division affirmed the conviction, holding that Petitioner's trial counsel had provided meaningful representation and that his remaining challenges were unpreserved for appellate review. People v. Cummins, 872 N.Y.S.2d 532, 533 (N.Y. App. Div. 2009). The court nonetheless noted that the People's "challenged remarks were either fair response to the defense summation or fair comment on the evidence." Id. The Court of Appeals denied leave to appeal. People v. Cummins, 908 N.E.2d 930 (N.Y. 2009).
Petitioner timely filed the instant petition on the same grounds as his appeal and relying entirely on his appeal brief. (Pet. 6.)
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, a petition for a writ of habeas corpus by a person in custody pursuant to a state-court judgment may only be brought on the grounds that his custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner is required to show that the state-court decision, having been adjudicated on the merits, was either "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in theState court proceeding." 28 U.S.C. § 2254(d); see also Johnson v. Williams, 568 U.S. 289, 292 (2013).
For the purpose of federal habeas review, "clearly established Federal law" is defined as "the holdings, as opposed to the dicta, of Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A state-court decision is "contrary...
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