Dominique v. Artus
| Decision Date | 17 June 2014 |
| Docket Number | No. 09–cv–623 WFK.,09–cv–623 WFK. |
| Citation | 25 F.Supp.3d 321 |
| Parties | Aly DOMINIQUE, Petitioner, v. Dale ARTUS, Superintendent, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Aly DOMINIQUE, Petitioner
v.
Dale ARTUS, Superintendent, Respondent.
No. 09–cv–623 WFK.
United States District Court, E.D. New York.
Signed June 17, 2014.
Aly Dominique, Napanoch, NY, pro se.
Andrea M. DiGregorio, Nassau County District Attorney, Mineola, NY, for Respondent.
DECISION AND ORDER
WILLIAM F. KUNTZ, II, United States District Judge:
Before the Court is a petition for the writ of habeas corpus pursuant to
28 U.S.C. § 2254 by Petitioner Aly Dominique. Following a jury trial in state court, Petitioner was convicted of attempted murder in the second degree and conspiracy in the second degree. Petitioner has brought numerous, unsuccessful state collateral attacks on his conviction—often at improper procedural junctures—and his direct appeal of the conviction was denied by the New York State Supreme Court, Appellate Division, Second Department (the “Second Department”). Now, Petitioner seeks federal habeas relief in this Court alleging fourteen constitutional violations. However, the majority of Petitioner's claims were never fairly presented to the state courts and can no longer be brought there. Three of Petitioner's claims were dismissed on independent and adequate state grounds. And Petitioner's one claim that is ripe for review in this Court is plainly meritless. For the reasons below, the petition for the writ of habeas corpus is denied in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2000, Petitioner plotted to kill his deceased brother's wife (hereinafter “the victim”). (Dkt. 18, Resp't's Br. in Opp., Declaration of Andrea M. DiGregorio (“Decl.”) ¶ 4). On October 30, 2000, Petitioner drove two hitmen to the victim's home where the hitmen waited in ambush. (Id. ) When the victim emerged, the hitmen shot her in the head and hand, but the injuries were not fatal. (Id. ) Petitioner was arrested the next day following an investigation. (Id. ) After being advised of his rights, Petitioner confessed, orally and in writing, to his efforts in attempting to have the victim killed. (Id. ) Petitioner was indicted in Nassau County for attempted murder in the first degree, assault in the second degree, and conspiracy in the second degree. (Id. ¶ 5).
During a jury trial in Nassau County Court, Petitioner successfully requested that attempted murder in the second degree be charged to the jury as a lesser included offense, (Id. ¶ 6). On February 25, 2002, Petitioner was convicted of attempted murder in the second degree and conspiracy in the second degree. (Id. )
Prior to the entry of judgment, Petitioner's attorney brought a motion under New York Criminal Procedure Law (“N.Y.C.P.L.”) § 330.30 alleging jury misconduct and that prosecution witness Greg San Filippo had erroneously testified. (Id. ¶ 7). By Decision and Order of July 22, 2002, the court denied the motion finding no legal ground for juror misconduct and that the alleged erroneous testimony did not warrant setting aside the verdict. (Id. ¶ 8).
On June 14, 2002, Petitioner filed an application for federal habeas corpus relief asserting fifteen grounds for relief. (Id. ¶ 9). The Honorable Joanna Seybert of the United States District Court for the Eastern District of New York dismissed that petition with leave to re-file when the judgment of conviction became final. Dominique v. Reilly, 02–cv–3677, Dkt. 12 (E.D.N.Y. Aug. 5, 2002).
On June 27, 2002, prior to his sentencing, Petitioner brought a N.Y. C.P.L. § 440.10 motion to vacate the judgment raising numerous alleged violations in connection with the trial. (Decl. ¶ 12). Despite being represented by counsel, the Petitioner filed the motion pro se. (Id. ¶ 14). The court denied the motion as premature and held that two of the issues had been raised, and denied, in the § 330.30 motion. (Id. )
On July 23, 2002, the court sentenced the Petitioner to a determinate term of twenty-five years imprisonment on the attempted murder conviction and a concurrent, indeterminate eight and one-third to
twenty-five year term for the conspiracy conviction. (Id. ¶ 15). With new counsel, Petitioner filed a timely appeal in the Second Department. (Id. ¶ 16). On appeal, Petitioner, with appellate counsel, claimed that: the verdict of “not guilty” on the second-degree assault charge was repugnant to the verdict of “guilty” on the attempted murder charge; Petitioner was deprived of his right to confront accusers; there was improper bolstering of prosecution witnesses; it was error to elicit that the defendant refused to make a videotape of his confession; there was improper vouching of his co-conspirator's testimony; and the sentence was excessive. (Id. ¶ 16). The Second Department held that all of Petitioner's claims were without merit and affirmed the judgment. People v. Dominique, 36 A.D.3d 624, 625–26, 831 N.Y.S.2d 85 (2d Dep't 2007).
During the pendency of that appeal, on October 25, 2005, Petitioner brought a New York Civil Practice Law and Rules (“N.Y.C.P.L.R.”) Article 78 proceeding against the Nassau County District Attorney and the New York State Attorney General. (Decl. ¶ 19). Petitioner contended that the trial court impermissibly amended the indictment, that he was convicted of a crime for which he had not been indicted, and that the court did not have jurisdiction to sentence him “for a crime that exist[ed] only in the imagination of the judge.” (Id. ) The Supreme Court, Nassau County denied Petitioner's application in its entirety and held: “The nature of relief sought is not applicable in this instance.... The proper remedy is an appeal.... Finally, on the merits, the petition fails.” (Id. ¶ 21).
On May 4, 2006, Petitioner moved, pursuant to N.Y. C.P.L. § 440.10, to vacate his judgment. (Id. ¶ 22). Petitioner filed two addendums to his motion and ultimately “raised the following claims: (1) the trial court lost jurisdiction of the case when defense counsel waived defendant's appearance for the presentation of some Rosario material; (2) the indictment was impermissibly amended and he was improperly sentenced; (3) there were ‘faulty court proceedings'; (4) defendant acquired ‘newly discovered evidence’ which, had he been in possession of it at trial, would have resulted in the verdict being more favorable to him; (5) the police allegedly conducted an unlawful search of defendant's home and office; (6) defense counsel was ineffective; and (7) the prosecutor allegedly suborned perjury.” (Id. ) The Nassau County Court denied the motion in a decision on August 25, 2006, holding that all claims, except for the newly discovered evidence claim, were issues that Petitioner needed to raise on direct appeal. (Id. ¶ 24). The court found the newly discovered evidence claim was without merit. (Id. ).1 The Second Department denied Petitioner leave to appeal his § 440.10 motion. (Id. ¶ 25).
Thereafter, on October 3, 2007, Petitioner moved under N.Y. C.P.L. § 440.20 to set aside his sentence. (Id. ¶ 26). He contended that the County Court lacked jurisdiction to sentence him to the “hypothetical (nonexistent) charge of Attempted Murder in the Second Degree.” (Id. ) That decision was dismissed by Justice Peck “with leave to renew, pursuant to C.P.L. § 440.10.” (Id. ¶ 29). The Petitioner took the court's leave and filed a § 440.10 motion on January 17, 2008 asserting his original claim and adding that “a charge of Conspiracy in the Second Degree is incompatible to a nonexistent crime of Attempted
Murder in the Second Degree.” (Id. ¶ 30). Justice Peck denied this motion on the merits, finding that the claims should have been raised on direct appeal and were nonetheless meritless. (Id. ¶ 32). The Second Department denied the Petitioner's motion for leave to appeal. (Id. ¶ 35).
In September 2008, Petitioner brought an Article 78 petition in the Supreme Court, Albany County against, among others, the prosecutor who tried his case. (Id. ¶ 36). This proceeding was dismissed as facially deficient as the Petitioner failed to state a viable claim for an Article 78 petition. (Id. ¶ 38).
On September 12, 2008, the Petitioner moved for a writ of error coram nobis alleging that he received ineffective assistance of appellate counsel. (Id. ¶ 39). The Petitioner asserted that his appellate counsel should have made the following arguments on direct appeal of his conviction: (1) the trial court and the prosecutor had no jurisdiction to charge and sentence defendant to a hypothetical crime; (2) the trial judge and the attorneys for all parties failed to understand that a defendant is entitled to be present at all material stages of the proceedings; (3) evidence used at trial was irrelevant and illegally obtained through violations of the Fourth and Fifth Amendments of the United States Constitution; (4) the prosecutor violated Petitioner's Sixth Amendment right of confrontation by using trial testimony of a co-defendant of whom he had full control, and other evidence, without affording Petitioner the opportunity for cross-examination; (5) the trial judge denied Petitioner his right to proper summation by repeatedly and unlawfully...
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