Dowtin v. Cohen
| Decision Date | 16 August 2004 |
| Docket Number | No. 03-MISC-0066 JBW.,No. 99-CV-323-SJ.,99-CV-323-SJ.,03-MISC-0066 JBW. |
| Citation | 352 F.Supp.2d 312 |
| Parties | Knowledge DOWTIN, Petitioner, v. Arthur COHEN, Superintendent of Greene Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Sholom J. Twersky, District Attorney of Kings County, Brooklyn, NY, for Defendant.
For the reasons indicated below this petition for a writ of habeas corpus is dismissed with a grant of certificate of appealability.
Petitioner filed his petition for writ of habeas corpus on January 15, 1999. After receiving respondent's papers and the state court record, a hearing with petitioner present by telephone was held on June 9, 2003. At petitioner's request, the case was then stayed to permit exhaustion of state remedies.
On the basis of papers to that hearing date, and the hearing, the court issued an opinion dismissing the case and granting a certificate of appealability on the issue of lack of adequate identification. See Order of June 10, 2003. This decision was stayed while petitioner proceeded in state court. See Order of June 13, 2003.
On October 9, 2003 the stay was lifted. Petitioner was given leave to amend his petition. On October 23, 2003 petitioner informed the court that he wished to continue exhausting his claims in state court. The stay was reimposed on November 20, 2003 at petitioner's request.
By letter dated January 19, 2004 petitioner requested the reopening of the case in this court. The case was reopened by order of February 2, 2004, with amendments to the petition allowed. No hearing was required by the court.
A motion pursuant to 28 U.S.C. section 2251 was made by petitioner on March 8, 2004. Simultaneously an amended petition was filed to stay the state court judgment.
On May 12, 2004 the court held another hearing. See the 74 page transcript of that date. Petitioner appeared by telephone, pro se. Petitioner's trial counsel, Eric Maggett, testified and was cross-examined by petitioner at the May 12 hearing. The court found counsel's testimony credible. The court decided orally to dismiss the petition, but gave the parties leave to submit further papers after the May 12 hearing. See Transcript May of 12, 2004, pp 69-73. See Order of May 12, 2004.
A consolidated response was submitted on June 8, 2004. On June 28 petitioner submitted a "traverse". The final date for any further submissions by petitioner was set by the court at July 13, 2004.
No further papers having been received from either party, the case is now, on July 26, 2004 ready for decision. The court is satisfied that petitioner has been given a fair and full opportunity to make his case in the state and federal courts.
Petitioner's original claims were that (1) his statements to the police were involuntary, (2) there was a violation of his Miranda rights, and (3) there was an eyewitness identification problem. Transcript May 12, 2004, p 3. Upon return from the state court petitioner added the following claims: 1) suggestive identification procedures by the police; 2) deprivation of the right to trial counsel; 3) deprivation of the right to call witnesses and to cross-examination adverse witnesses; 4) ineffective trial counsel representation; 5) use of impermissible hearsay; and 6) use of perjured testimony by the prosecution.
The evidence and records in the case support the following statements.
On November 10, 1994, at approximately 2:30 p.m., petitioner (sometimes referred to as "defendant") approached Arthur Cohen at the entrance to Cohen's mattress store located at 424 Remsen Avenue in Brooklyn. Defendant confronted Cohen and said: "This is a holdup." When Cohen attempted to resist, defendant shot him twice in the leg at close range. After Cohen fell to the ground, defendant leaned over and searched the victim's pockets. Defendant then shot Cohen three more times in the groin and abdomen area.
Defendant was charged under Kings County Indictment Number 273/95 with one count of Attempted Murder in the Second Degree (New York Penal Law §§ 110.00/125.25[1]), two counts of Assault in the First Degree (New York Penal Law §§ 110.00/160.15[1], [2], [3]), one count of Attempted Robbery in the Second Degree (New York Penal Law §§ 110.00/160.10[2][a]), one count of Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03), and one count of Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02[4]).
Prior to trial, defendant moved to suppress the identification made by two witnesses at the lineup, as well as defendant's signed statement and videotaped statement. After conducting an evidentiary suppression hearing, the court found both of defendant's statements as well as the identification evidence admissible at trial.
Defendant was convicted, after a jury trial, of one count each of Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. He was sentenced to concurrent terms of imprisonment of five to fifteen years' imprisonment on the first-degree assault and second-degree possession convictions, and to a concurrent term of two and one-third to seven years' imprisonment on the third-degree possession conviction.
On his state appeal, defendant claimed: (a) defendant's identity as the shooter was not proven beyond a reasonable doubt; (b) defendant's statements should have been suppressed because they were in violation of his right to due process; and (c) defendant's sentence was excessive.
On November 24, 1997, the Appellate Division, Second Department, unanimously affirmed defendant's conviction. People v. Dowtin, 244 A.D.2d 567, 664 N.Y.S.2d 363 (2d Dep't 1997). The state appellate court held that defendant's legal sufficiency claim was both unpreserved as a matter of law and meritless. That court also determined that
there is no merit to the defendant's contention that his statements were involuntary. It is undisputed that the defendant was not threatened, abused, or otherwise mistreated by the police .... There is no evidence that the defendant requested an attorney at the time, that he was deprived of food or drink, or that he was subjected to persistent and overbearing interrogation or deception so fundamentally unfair as to deny due process .... Additionally, the hearing court found that the defendant had twice been advised of his Miranda rights and had voluntarily waived them prior to making both his oral and videotaped statements ....
Id. at 567-68, 664 N.Y.S.2d 363 (citations omitted). The state court also found defendant's sentencing claim meritless.
In a letter, dated January 8, 1998, defendant's sought leave to appeal to the New York Court of Appeals. On February 13, 1998, this application was denied. People v. Dowtin, 91 N.Y.2d 925, 670 N.Y.S.2d 406, 693 N.E.2d 753.
On June 5, 2003, while defendant's original habeas application was pending before this court, petitioner moved pro se to vacate judgment in New York Supreme Court, Kings County. In that motion, defendant alleged that: (a) the court improperly denied him the right to call as a defense witness the victim of another crime which had occurred at about the same time and location as the instant case; (b) the court improperly allowed the People's eyewitness to testify regarding his out-of-court identifications as well as the bolstering testimony of the arresting officer; (c) defendant's arrest photo was improperly used at trial; and (d) defendant received ineffective assistance of trial counsel when counsel failed to offer objections to these errors, failed to preserve defendant's legal insufficiency claim for appellate review, and failed to object to the court's refusal to provide the jury with certain witnesses' grand jury testimony pursuant to the jurors' request.
In a supplemental pro se motion to vacate judgment, dated June 30, 2003, defendant raised several new claims, in Supreme Court, Kings County, including that: (a) the hearing court improperly denied defendant's motion to suppress the identification evidence; (b) the court improperly precluded defendant from cross-examining the victim regarding his prior alleged statement that he had recognized the shooter as someone who had robbed him in 1992 or 1993; (c) that defendant received ineffective assistance of trial counsel when counsel: (i) failed, as per defendant's request, to investigate the time it would have taken the witness Pascal Kelly to ride to the auto body store to hear the shooting, (ii) failed to obtain a surveillance tape from the Burger King which allegedly would have demonstrated that defendant's hairstyle and clothing did not match the witnesses' description of the shooter, and (iii) failed to call defendant's brother and a friend as alibi witnesses at trial; (d) the trial court improperly denied defendant's written motion to have new counsel assigned; (e) the People knowingly proffered false testimony regarding Pascal Kelly attending some of the same classes as defendant; and (h) the court should have held a hearing on Pascal Kelly's prior familiarity with defendant.
On July 28, 2003, the Supreme Court, Kings County, in a written decision, summarily denied defendant's motion to vacate judgment. The state court held that most of defendant's claims were statutorily precluded from review, pursuant to New York Criminal Procedure Law section 440.12(2)(c), because defendant failed to raise the issues on direct appeal. The court alternatively found that any of the procedurally barred claims that related to defendant's ineffective assistance of counsel claim were meritless.
In an application, dated August...
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