Dobbin v. Greiner

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Berman
• Citation: Dobbin v. Greiner, 249 F. Supp. 2d 241 (S.D. N.Y. 2002)
• Decision Date: 30 December 2002
• Docket Number: No. 00V7085(RMB)(DFE).,00V7085(RMB)(DFE).
• Parties: Anthony DOBBIN, Petitioner, v. Charles GREINER, Superintendent, Green Haven Correctional Facility, and Eliot L. Spitzer, New York State Attorney General, Respondents.

249 F.Supp.2d 241

Anthony DOBBIN, Petitioner, v. Charles GREINER, Superintendent, Green Haven Correctional Facility, and Eliot L. Spitzer, New York State Attorney General, Respondents.

No. 00V7085(RMB)(DFE).

United States District Court, S.D. New York.

December 30, 2002.

COPYRIGHT MATERIAL OMITTED

Martin Lucente, Legal Aid Society, New York, for plaintiff.

Michael Keane, Attorney General, New York, for Defendant.

ORDER

BERMAN, District Judge.

I. Introduction

On or about September 20, 2000, Petitioner Anthony Dobbin ("Dobbin" or "Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") challenging his February 28, 1996 conviction in Supreme Court, New York County, for robbery and criminal possession of stolen property in violation of N.Y. Penal Law §§ 160.15(3), 160.10(1), 160.05, 155.40. Petitioner's conviction had been affirmed on October 12, 1999 by the Appellate Division, First Judicial Department. People v. Dobbin, 265 A.D.2d 193, 697 N.Y.S.2d 10 (1st Dep't 1999) (finding, inter alia, that "[t]he court sufficiently followed the protocols required by Batson v. Kentucky "). Leave to appeal was denied by the New York Court of Appeals on December 30, 1999. People v. Dobbin, 94 N.Y.2d 861, 704 N.Y.S.2d 537, 725 N.E.2d 1099 (1999).

In his Petition, Dobbin alleges, among other things, that: (1) the trial court improperly excluded a potential juror over Petitioner's Batson objection; (2) he was denied effective assistance of counsel because his trial counsel incorrectly calculated his maximum sentencing "exposure"; (3) the trial court's refusal to permit the testimony of a defense witness denied him a fair trial; and (4) the trial judge gave a photograph of the victim to the jury during its deliberations without first consulting trial counsel. Respondent opposed the Petition on February 23, 2001; and Petitioner filed a reply on March 16, 2001.

On May 29, 2002, Magistrate Judge Douglas F. Eaton, to whom this matter had been referred, issued a Report and Recommendation ("Report") recommending that: (1) an evidentiary hearing be held to assess the issue of discriminatory intent with respect to Petitioner's Batson challenge, Report at 14; (2) an evidentiary hearing be held to determine "whether, if the parties had known the correct sentencing exposure prior to trial, Dobbin would have received and accepted a plea offer less than his eventual sentence," id. at 21; and (3) the trial court's preclusion of a defense witness did not rise to the level of a constitutional violation, id. at 16-17; (4) Petitioner's claim regarding the victim's photo "lacks substance." Id. at 22.¹

The Report advised the parties that "[pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, any party may object to this recommendation within 10 business days after being served with a copy." Id. at 22. Petitioner filed objections to the Report, dated June 24, 2002 ("Petitioner's Objections"). On June 24, 2002, Respondent filed objections to the Report ("Respondents' Objections"); and on June 28, 2002, Petitioner filed a response to Respondent's Objections ("Petitioner's Response"). For the reasons set forth below, the Report is adopted in all respects.

II. Standard of Review

The Court may adopt those portions of a Magistrate's report to which no objections have been made and which are not facially erroneous. See Fed.R.Civ.P. 72(b); see, e.g., Letizia v. Walker, No. 97 Civ. 0333, 1998 WL 567840, at *1 (W.D.N.Y. Aug. 27, 1998); Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). The court conducts a de novo review of those portions of a Magistrate's report to which objections have been made. See, e.g., Letizia, 1998 WL 567840 at *1; Pizarro, 776 F.Supp. at 817. Once objections are received, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See, e.g., DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y. 1988).

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254(d) (2000), "[a]n application for a writ of habeas corpus ... 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 based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." And, "the federal courts `must give the state court's adjudication a high degree of deference.'" Dickens v. Filion, 2002 WL 31477701, at *7 (S.D.N.Y. Nov.6, 2002) (quoting Yung v. Walker, 296 F.3d 129,134 (2d Cir.2002)).

III. Analysis

The facts as set forth in the Report are incorporated herein unless otherwise noted.

The Court has conducted a de novo review of the record herein, including, among other things, the Report, both parties' Objections, Petitioner's Response, and applicable legal authorities, and concludes that Magistrate Eaton's legal and factual determinations are supported by the record and the law in all material respects. Neither parties' submissions provide a basis for departing from the Report's recommendations.²

The Batson Claim

Magistrate Eaton determined that by failing to conduct a meaningful "stage three" inquiry into whether the prosecutor's proffered race-neutral reason for its peremptory challenge was pretextual, Report at 12, the trial court judge, the Honorable Charles J. Tejada, "did not sufficiently follow the protocols required by Batson."³ Id. at 13; see Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir.2000), remanded to 2000 WL 1877039 (S.D.N.Y. Dec.27, 2000), aff'd 293 F.3d 587 (2d Cir. 2002) (trial judge's "cursory treatment" of Batson application "was not a meaningful inquiry into `the decisive question ... whether counsel's race neutral explanation for a peremptory challenge should be believed" `) (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). Respondent argues that Justice Tejada (sufficiently) "heard defense counsel's argument as to why the prosecutor's proffered explanation should be deemed pretextual" and "plainly considered counsel's argument." Respondents' Objections at 4.

A proffered reason for a challenged peremptory strike need not be "persuasive, or even plausible." Respondents' Objections at 7 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). At the same time, the United States Court of Appeals for the Second Circuit has "emphasized a trial court's duty at the third stage to determine the credibility of the proffered explanations." Jordan, 206 F.3d at 200 (citing Barnes, 202 F.3d 150).⁴ Justice Tejada clearly heard the prosecutor's race-neutral explanation—which, presumably, was that the challenged juror, a Department of Corrections employee, might have contact with the Petitioner—and summarily determined that this reason was sufficient to strike the juror. 2/21/96 Hearing Transcript at 82-83. When defense counsel argued that the prosecutor's explanation was "all speculation" and sought to "complete the record," id., Justice Tejada "gave the impression that the claim of racial discrimination was refuted as soon as the prosecutor gave a reason unrelated to race, and that there was no need to argue about whether the reason was credible." Report at 12; 2/21/96 Hearing Transcript at 82-83 ("Counsel [the prosecutor], you don't have to respond. What the law requires the People to give is a reason unrelated to race. They have done it.").

Without in any way critiquing the prosecutor's race neutral explanation, or suggesting a different outcome, the Court agrees with Magistrate Eaton that the trial judge should have allowed defense counsel (more) time to make his case. Where a trial court "granted counsel no time to identify the relevant facts and assess the circumstances necessary to decide whether the race neutral reasons given were credible and nonpretextual," an evidentiary hearing may serve the purpose of completing the record. See Jordan, 206 F.3d at 200-01.

Ineffective Assistance of Counsel Claim

Prior to March 21, 1996, defense counsel (as well as the prosecutor) mistakenly believed that Petitioner, if convicted, would be classified as a "mandatory persistent violent felony offender" because of Petitioner's prior convictions for (i) attempted robbery in the second degree, and (ii) attempted criminal possession of a weapon (a knife) in the third degree. They did not realize that Petitioner's second conviction did not subject him to mandatory persistent violent felony offender status under New York Penal Law §§ 70.04 and 70.08. Report at 17. By the time of Petitioner's sentencing on April 17, 1996, defense counsel was aware of the mistake and provided proof that Petitioner's second prior conviction was not a "violent offense" (within the meaning of N.Y. Penal Law § 70.02(1)(d)) and apprised Justice Tejada that Petitioner's correct status was that of a second violent offender—not a persistent violent felony offender. Affirmation in Response to Defendant's Pro Se Motion to Vacate Judgment Pursuant to Criminal Procedure Law Section 440.10, dated April 5, 1999, at 3; 4/17/96 Sentencing Transcript at 3-5, 7.⁵

Magistrate Eaton recommends (appropriately in these circumstances) that an evidentiary hearing be held to determine "whether, if the parties had known [Petitioner's] correct sentencing exposure prior to trial, Dobbin would have received and accepted a plea offer less than his eventual sentence of 12 to 24 years." Report at 21.

"To establish a claim of ineffective assistance of counsel, a convicted defen...