Dennis Donahue, 08-B-2160 v. Griffin
| Decision Date | 27 September 2016 |
| Docket Number | 12-CV-0752-MJR |
| Parties | DENNIS DONAHUE, 08-B-2160, Petitioner, v. PATRICK GRIFFIN, Respondent. |
| Court | U.S. District Court — Western District of New York |
Pro se petitioner Dennis Donahue ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction in Erie County Court (Hon. Shelia DiTullio) of second degree murder.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c) (Dkt. #15).
The factual summary that follows derives from the parties' representations contained in the following submissions: Petition dated August 9, 2012 ("Pet." [Dkt. #1]), Respondent's Memorandum of Law in Opposition ("Resp't Mem." [Dkt. #12]), and attached exhibits ("Resp't Ex. ___") and the trial transcripts ("T.___").1 The Court has also considered the points raised in Petitioner's Reply Affirmation ("Pet'r Reply" [Dkt. #13]).
Petitioner was convicted of Murder in the Second Degree, N.Y. Penal L. § 125.25[1] following a jury trial and was sentenced to a term of 25 years to life. He is currently incarcerated at Sullivan Correctional Facility.
Petitioner's conviction arises out of the strangulation death of Joan Giambra ("Giambra" or "the victim") on September 9, 1993 in the City of Buffalo. The victim's nude body was found on a sofa bed in her living room with her eleven year-old daughter lying on top of her in the fetal position, nude and unconscious. Years went by without an arrest, until September, 2007, when the Buffalo Police Department's "Cold Case Squad" secured DNA from Petitioner that matched DNA at the crime scene at the victim's house.
Around the same time, Petitioner's DNA was linked to the crime scene of another murder case implicating Lynn DeJac ("DeJac"). DeJac spent over a decade in prison for a crime she did not commit, i.e., the strangulation of her thirteen year-old daughter Crystallyn Girard ("Girard"), and was exculpated by DNA evidence also procured by the Cold Case Squad. The DNA found on Girard's body, on her bedding, and in a smear of blood on the bedroom wall, belonged to Petitioner.2
DeJac's conviction was vacated on November 28, 2007, by the Honorable Michael D'Amico, New York State Supreme Court Justice. DeJac's new trial was scheduled to begin two weeks after Petitioner's trial in the Giambra case.
Several pretrial hearings were conducted in Petitioner's case in late 2007 and early 2008, including suppression, dismissal, recusal, and preclusion motions. A jury trial commenced on April 21, 2008, and concluded May 12, 2008, following which Petitioner was convicted as charged.
On February 10, 2011, the Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction, and the New York Court of Appeals subsequently denied Petitioner's application to review that determination. People v. Donahue, 81 A.D.3d 1348 (4th Dept.); lv. denied, 16 N.Y.3d 894 (2011).
Petitioner did not file any post-conviction motions.
Petitioner then filed the instant Petition for writ of habeas corpus in this Court on August 9, 2012, alleging the following twelve grounds, which he also raised on direct appeal: (1) the trial court's denial of a stay of proceedings, adjournment, and mistrial due to pretrial publicity concerns deprived Petitioner of a fair trial; (2) the trial court's denial of a challenge for cause deprived Petitioner of an impartial jury; (3) the 14-year delay between the crime and the indictment violated Petitioner's due process rights; (4) the prosecution's discriminatory exercise of three male preemptory challenges violated the Batson rule; (5) the verdict was against the weight of the evidence and the evidence was legally insufficient to sustain the conviction; (6) the trial court failed to comply with N.Y. Crim. Proc. L. § 310.30 with respect to a jury note; (7) the jury rendered a second verdict before having heard a requested read-back of DNA testimony in violation of Article 310 of N.Y. Crim. Proc. L.; (8) the admission of the victim's autopsy report deprived Petitioner of his right to confront witnesses against him; (9) trial counsel was constitutionally ineffective; (10) Petitioner was subjected to custodial interrogation without Miranda warnings; (11) the testimony of an inmate regarding Petitioner's confession was elicited by the prosecution in violation of Petitioner's right to counsel; and (12) the sentence was unduly harsh and excessive. Pet., Attach. at 1-20.
Respondent argues that Petitioner is not entitled to habeas relief because his claims are either procedurally barred, without merit, or do not present a question of constitutional dimension. Resp't Mem. at 3-52.3 For the reasons that follow, the Petition is denied.
I. General Legal Principles
A district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Errors of state law are thus not subject to federal habeas review. E.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (). Federal habeas review of state court decisions is governed by the standard set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 et seq., which provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was basedon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1), (2).
A state court decision is "contrary to" established federal law if the state court arrives at a conclusion on a question of law that is opposite to that reached by the Supreme Court, or if the state court adjudicates essentially the same facts as a prior Supreme Court case but reaches an opposite result. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (citations omitted). A state court decision is an "unreasonable application" of established federal law if (1) the state court correctly identifies the relevant legal principle but unreasonably applies it to a set of facts; (2) the state court unreasonably extends an existing principle to a new context where it should not apply; or (3) the state court refuses to extend an existing principle to a context where it should be extended. Williams, 529 U.S. at 407. Any factual determination made by the state court must is presumed correct unless the habeas petitioner can rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
It is well-settled that a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). In order to exhaust a federal constitutional claim for the purposes of federal habeas review, the substance of the federal claim, both legal and factual, must be apparent from the petitioner's presentation to the state court. See Picard, 404 U.S. at 275-76; Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). "The claim presented to the state court, in other words, must be the 'substantial equivalent' ofthe claim raised in the federal habeas petition." Jones v. Keane, 329 F.3d 290, 295 (2d Cir. 2003) (quoting Strogov v. Att'y Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (in turn quoting Picard, 404 U.S. at 278 (1971)). Generally, this involves the completion of one full round of appellate review, meaning that the highest state court so empowered must have been presented with the opportunity to consider the petitioner's federal constitutional claim. See Picard, 404 U.S. at 275-76.
However, "[f]or exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263, n. 9 (1989) (other citations omitted). Under such circumstances, a habeas petitioner "no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. Section 2254(b)." Id. When a petitioner no longer has "remedies available" in the state courts, because he is procedurally barred by state law from raising such claims, the habeas court may deem the claims exhausted but procedurally defaulted. Id. at 120-21 (quoting Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)).
The procedural bar that gives rise to the finding that the claim should be deemed exhausted works a forfeiture and precludes litigation of the merits of the claim absent a showing of cause for the procedural default and prejudice resulting therefrom or by demonstrating that the failure to consider the claim will result in a fundamental miscarriage of justice (i.e., actual innocence). See Wainwright v. Sykes, 433 U.S. 72, 87-91(1977); see also Sawyer v. Whitley, 505 U.S. 333 (1992).III. The Instant Petition
A. Ground One: Pretrial Publicity
Petitioner first alleges that he was denied a fair trial due to trial court's denial of his requests for a stay of the proceedings to re-apply to...
To continue reading
Request your trial