Davidson v. Cunningham

Decision Date29 August 2017
Docket NumberNo. 16-CV-01125 (JFB),16-CV-01125 (JFB)
PartiesRICHARD DAVIDSON, Petitioner, v. SUPERINTENDENT CUNNINGHAM, Respondent.
CourtU.S. District Court — Eastern District of New York
MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On March 7, 2016, Richard Davidson ("petitioner" or "Davidson") petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court (the "trial court") on eight grounds. Following a jury trial, petitioner was convicted of the lesser included offense of second-degree assault (New York Penal Law ("NYPL") § 120.05[2]), two counts of second-degree criminal possession of a weapon (NYPL § 265.03[1][b] and [3]), and attempted third degree assault (NYPL §§ 110/120.00(1)). (Resp. Aff., ECF No. 7, at ¶ 8; see also T.1 1402-03.) On July 2, 2013, the trial court: (1) set aside the second-degree assault conviction pursuant to New York Criminal Procedure Law ("CPL") § 330.30; (2) sentenced petitioner to concurrent terms of seven and one-half years and two and one-half years of post-release supervision for the two weapon-possession convictions; and (3) sentenced petitioner to time served for his attempted assault conviction. (S.2 at 6, 23.) Subsequently, the Supreme Court, Appellate Division, Sec-ond Department ("Appellate Division") reversed the trial court's decision to set aside the second-degree assault verdict and remanded the case to the trial court for resentencing, People v. Davidson, 122 A.D.3d 937, 938 (N.Y. App. Div. 2014), which resulted in a determinate term of four years of imprisonment and two years of post-release supervision served concurrently with his other sentences. (Resp. Aff. ¶ 10).

Petitioner challenges his conviction on the following eight grounds: (1) the trial court erred in denying a mistrial following the question by the prosecutor to a defense witness that suggested that petitioner purchased a silver handgun in Georgia; (2) the prosecutor committed misconduct during summation in referencing petitioner's post-arrest silence; (3) the trial court erred in permitting the prosecutor's peremptory challenges to remove African-Americans from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (4) the trial court improperly allowed the People's ballistics expert to testify with a "reasonable degree of certainty" that the recovered shell casings were fired from the same source; (5) the trial court issued an impermissible circumstantial-evidence charge to the jury; (6) the Appellate Division erroneously reversed the trial court's order to set aside petitioner's second-degree assault conviction, (Pet., ECF No. 1, at 6-12); (7) the indictment was defective because it was based on legally insufficient evidence; and (8) petitioner was denied effective assistance of counsel because counsel failed to move to dismiss certain counts of the indictment, to object to alleged trial-related prosecutorial misconduct, and to effectively question a defense witness. (Aff. Supp. Petitioner's Amend. of Habear Pet. ("Pet. Amend."), ECF 11, at 2; see also Resp. Aff. Opp'n Supp., ECF No. 13 ("Resp. Supp. Aff."), at ¶ 10.) For the reasons discussed below, the petition is denied in its entirety.

I. BACKGROUND

The following facts are adduced from the petition, respondent's affidavit and memorandum in opposition, petitioner's reply, petitioner's supplemental affidavit in support of his amendment to the petition, respondent's affidavit and memorandum in opposition to supplemental papers, and the underlying record.

A. Factual Background
1. Underlying Crime

On September 23, 2010, petitioner punched Tony Hinds at Hinds's workplace, accused Hinds of having an affair with petitioner's wife, and verbally threatened Hinds. (T. 671-72.) Approximately two months later, on November 21, 2010, petitioner again appeared outside Hinds's workplace. (Id. at 702, 754, 819-826.) He approached Hinds, pulled a handgun from his pocket, and began shooting. (Id. at 702-03, 824-27.) Multiple bullets struck Hinds in the back of his legs as he ran into the building. (Id. at 702-03, 708, 734, 748-53.) Petitioner pursued Hinds and shot him again at close range. (Id. at 703, 824-27.) Petitioner then fled. (Id. 703-04, 828.) Hinds sustained multiple gunshot wounds in his back, shoulder, and legs. (Id. at 1103-05.) Although he was bleeding heavily when paramedics arrived, doctors diagnosed only soft-tissue injuries that could be treated by cleaning and dressing at the hospital. (Id. at 568-71, 1114.)

2. Jury Selection

During jury selection, the People exercised peremptory challenges on eight African-American jurors, and petitioner raised Batson objections. (Id. at 400-05.) First, the People challenged Verace Skeete (id. at 201), who had a pending charge with the Nassau County District Attorney's Office (id. at 79-80). The defense argued the prosecution violated Batson because four white individuals who "had close relatives presently or in the past prosecuted by this office" were not challenged. (Id. at 402-03.) The People argued Skeete's challenge was used because the Nassau County DA's Office was "currently prosecuting him."3 (Id. at 414.)

Second, the People challenged Kimesha McPherson (id. at 282), whose fiancé was convicted of a felony by the Assistant District Attorney handling the voir dire (id. at 225-26). McPherson also stated that she did not believe the court system, the ADA, or the Nassau County DA's office treated her fiancé fairly. (Id. at 227-28.) Defense counsel argued the People violated Batson because they did not challenge four white individuals whose relatives either had been, or were in the process of being, prosecuted by the office. (Id. at 402-03.) The People claimed they challenged McPherson "because her fiancé was prosecuted only a year ago" by the same ADA working on the instant case and "she did not volunteer that information." (Id. at 415-16.)

Third, the People challenged Noe Arastil (id. at 281), a teacher and a native of Haiti (id. at 275). The defense alleged a Batson violation because the People did not get anything out of him that "deem[ed] him to be challenged." (Id. at 402.) The People reasoned the challenge was made because of potential language issues, and Arastil's body language suggested he was not "receptive to what" the prosecution was saying.4 (Id. at 417-18.)

Fourth, the People challenged Carlene Bailey (id. at 280), a nurse (id. at 414), whose two brothers were convicted of crimes in the city (id. at 234). Defense counsel alleged a Batson violation based on the challenge to Bailey because she stated "the prosecutor treated her brothers fairly." (Id. at 402.) The People claimed they challenged Bailey because she was a nurse, an occupation the DA's office trains prosecutors not to look for in jury selection. (Id. at 414-15.) Similarly, the People pointed out that they challenged another individual who was not African-American "because she works within a hospital as a doctor." (Id. at 415.) In addition, the People perceived a "level of hostility" from her body language—shrugging her arms and rolling her eyes—"inside and outside the courtroom." (Id. at 414.)

The People also challenged Wanda Capers (id. at 282), a police officer's wife (id. at 229-30), who worked at a full-service law firm that sometimes handles criminal matters (id. at 230). The defense alleged a Batson violation because "[Capers'] husband is a police officer" and so "[c]learly pro-prosecution." (Id. at 402.) The People reasoned, however, that it challenged Capers because "she works for a full-service law firm that includes criminal-type work . . . despite the fact that her husband is in the NYPD." (Id. at 418.) The People also noted that it also "got[] rid of [a] white female" because "[s]he was also a lawyer who had sat on a criminal jury . . . [who] would have some knowledge of criminal-type cases." (Id. at 418.)

The People challenged Nkenge Fuller (id. at 386), whose voir dire revealed that she witnessed a history of "ongoing domestic abuse" toward her mother that resulted in regular contact with police (id. at 350-51). The defense argued Fuller would be "pro-prosecu-tion" because of her experience as "an individual who has been a victim." (Id. at 400-01.) The People reasoned Fuller's experiences "hit[] too close to home" because "this case does deal, to a certain extent, with the way men treat women." (Id. at 419-20.) In addition, the People asserted that Fuller's body language—"she did not make eye contact" and "[s]he sat with her arms crossed"—supported the challenge. (Id. at 420-21.)

Next, the People challenged Pasquale Delva (id. at 387), who was unemployed (id. at 346). Defense counsel alleged a Batson violation because Delva seemed "pro-prosecution." (Id. at 400.) The People claimed Delva was challenged because she was "an unemployed individual." (Id. at 421.) In addition, the People noted its peremptory challenge of a white juror on the grounds of his unemployment. (Id. at 419.)

Finally, the People challenged Diane Nelson (id. at 388), whose husband was a pastor in Brooklyn (id. at 357). Here, defense counsel argued that Nelson was "also seemingly pro-prosecution" because her husband, like the victim in petitioner's case, was "a member of the clergy." (Id. at 401.) The People reasoned Nelson may judge the complainant too strongly as a representation of her husband because of his alleged affair with the petitioner's wife. (Id. at 421.)

The trial court found "the explanations of the People regarding race-neutral reasons for the peremptory challenges" acceptable and denied the defendant's Batson applications with one exception. (Id. at 431.) The court accepted the defendant's Batson application as to Arastil and gave the defense an additional peremptory challenge because "all we have on that situation is short answers and [Arastil] folding his arms."5 (Id. at 431.)

2. Presentation of Evidence

At the outset of trial, during voir dire, the...

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