Dunn v. Sears

• Decision Date: 18 June 2008
• Docket Number: No. 06 CV 4757 (VM).,06 CV 4757 (VM).
• Citation: 561 F.Supp.2d 444
• Parties: Willie DUNN, Petitioner, v. Lawrence F. SEARS, Respondent.
• Court: U.S. District Court — Southern District of New York

561 F.Supp.2d 444

Willie DUNN, Petitioner, v. Lawrence F. SEARS, Respondent.

No. 06 CV 4757 (VM).

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

June 18, 2008.

COPYRIGHT MATERIAL OMITTED

Illie Dunn, Malone, NY, Pro Se.

Frederick Hongyee Wen, Attorney General of the State of New York, New York, NY, for Respondent.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

I. INTRODUCTION

Pro se petitioner Willie Dunn ("Dunn") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006). Dunn was convicted in New York State Supreme Court, New York County (the "Trial Court"), of two counts of grand larceny in the third degree in violation of New York Penal Law ("NYPL"). § 155.35; two counts of grand larceny in the fourth degree in violation of NYPL § 155.30(1); attempted grand larceny in the fourth degree in violation of NYPL §§ 110.00 and 155.30(1); and criminal possession of a forged instrument in the second degree in violation of NYPL § 170.25 (collectively, the "Offenses"). Dunn was sentenced to imprisonment for an indeterminate aggregate term of nine to eighteen years. In his petition, Dunn asserts the following grounds as bases for habeas relief: denial of his due process right to a fair trial by reason of (1) the Trial Court's failure to order a hearing regarding whether the prosecutor provided Dunn with a reasonable opportunity to appear before the grand jury, and (2) prosecutorial misconduct on summation because the prosecutor: a) harshly denigrated the defense; b) repeatedly referred to evidence outside the four corners of the trial evidence; c) shifted the burden of proof; and d) made inappropriate comments about the exercise of Dunn's constitutional rights. For the reasons stated below, Dunn's petition is DENIED.

II. BACKGROUND

A. FACTS AND PROCEDURAL HISTORY¹

1. The Offenses

Dunn was convicted on four separate larceny charges arising from incidents on August 26 and 29, and September 3 and 8 2002, in addition to convictions for attempted grand larceny and criminal possession of a forged instrument on September 14, 2002.

a. Grand Larceny on August 26, 2002

On August 26, 2002, the Office Depot at 521 Fifth Avenue in Manhattan ("Office Depot I"), received an order for a laptop computer, costing $1,699.99, which was placed through an Office Depot call center. The order specified the authorized purchaser as Art Quimby² for Dow Jones & Company ("Dow Jones"). At approximately 8:00 a.m., Dunn came to Office Depot I, and, after the store manager legitimated the order by phone, signed for the package, produced identification,³ and picked up the order.

b. Grand Larceny on August 29, 2002

On August 29, 2002, Office Depot I received a fax order, purportedly on behalf of Dow Jones, for two laptop computers totaling $3,199.98, which was billed to Dow Jones and signed by a person purporting to be Quimby. Dunn later came to the store and picked up the computers.

c. Grand Larceny on September 3, 2002

On September 3, 2002, Office Depot I received an order from its call center placed by Willie Dunn purportedly on behalf of Dow Jones for two laptop computers totaling $2,749.98. As surveillance cameras captured his movements, Dunn arrived at Office Depot I at approximately 2:00 p.m., signed for and picked up the computers.

d. Grand Larceny an September 7-8, 2002

On September 7, 2002, Dunn arrived at the CompUSA store at 57th Street and Broadway in Manhattan (the "CompUSA Store") to pick up an order for two laptop computers valued at $5,199.94, purportedly on behalf of Dow Jones (the "September 7th Order"). Dunn stated that he was a messenger sent by Quimby, but Dunn could not produce sufficient identification. The CompUSA Store denied Dunn's request to pick up the computers because he lacked identification.

On September 8, 2002, Yarila Gonzales ("Gonzales"), the cashier at the CompUSA Store, received a call from a person who purported to be Quimby (the "Caller"). The Caller asked to speak with a manager concerning the September 7th Order. Gonzales informed the Caller that she would need to speak with her manager regarding the Caller's concerns. The Caller refused to give his phone number to Gonzales because' the Caller claimed he was driving and could not be reached. Later that day, Dunn came to the CompSA Store to pick up the September 7th Order, and he brought with him a copy of a purchase order containing Quimby's name and phone number. However, when asked for photographic identification, Dunn could produce only Medicaid and Social Security cards. A CompUSA manager called Dow Jones to speak with Quimby, but Quimby was unavailable to take the manager's call at that time. A CompUSA manager eventually approved the computers' release. Dunn signed the invoice and left with the computers.

e. Dunn's Arrest

On September 13, 2002, Billy Green ("Green"), the customer services supervisor for Office Depot's Business Services Division in Atlanta, Georgia, received a phone call from a customer purporting to be Quimby (the "Customer"). The Customer was upset because he was unable to order laptops on a Dow Jones corporate account. Green determined that the account had been purged because of fraudulent activity, but he' approved the order to appease a corporate client. Green noticed that there was unusual activity on the account⁴ and decided to tell the Customer that Office Depot needed time to locate a store with the desired computers. The Customer refused to provide Green with his telephone number.

Green then telephoned Michael Shannon ("Shannon"), Office Depot's northeast regional loss prevention manager, who instructed Green to send the order to an Office Depot store located at 1441 Broadway, Manhattan ("Office Depot II"), which had a surveillance camera. Eventually, Green faxed an invoice to the fax number provided by the Customer/ which was a Kinko's store Jocated in Manhattan.

On September 14, 2002, Shannon went to Office Depot II to speak with Timothy O'Donnell ("O'Donnell"), the assistant manager, and Shannon directed him to stall anyone who came in to pick up the computers while Shannon called the police. Dunn arrived at the store at about 2:30 p.m. and asked to pick up the laptops for Dow Jones. O'Donnell asked for photo identification, but Dunn provided only a copy of the invoice while Shannon called the police. O'Donnell attempted to stall Dunn longer by telling him that the computers were shipped to the wrong store, but Dunn left because he said he "lost his car." (Trial Tr. at 422.) Police arrived shortly thereafter, and Shannon signed a police report describing the incident.

At approximately 4:15 p.m., O'Donnell received a phone call from a man identifying himself as Detective Holden from the Midtown South Precinct ("Detective Holden"), who stated he was investigating a theft ring, and O'Donnell gave Detective Holden Shannon's telephone number. After speaking with Detective Holden, Shannon noticed that the man had a southern accent and found it suspicious that Detective Holden could not remember his precinct number. Later that day, Shannon received another phone call from the man identifying himself as Detective Holden, and the man requested that Office Depot release the laptops to Dunn so that undercover officers could follow Dunn. Shannon then called the Midtown South Precinct and spoke with Detective Anthony Czak ("Det. Czak"), who informed Shannon that there was no Detective Holden in that precinct.

O'Donnell received another phone call from the man identifying himself as Detective Holden, and the man said that he was stationing detectives outside the store and if Dunn came in, O'Donnell should give the computers to Dunn and allow Dunn to leave. O'Donnell subsequently received another call from the man purporting to be Detective Holden, who was upset that Dunn had approached the store and walked away. O'Donnell subsequently received another call from the man identifying himself as Detective Holden and was told that Dunn was close by and the computers should be ready to be released. Det. Czak went to the sales floor, where he witnessed O'Donnell hand Dunn a computer valued at $1,549.99, and Det. Czak apprehended Dunn within the store.

Det. Czak searched Dunn and recovered numerous papers, including Green's phone number and extension, as well as a credit card receipt and a slip for the laptop computer order, both dated September 13, 2002. The receipt was for an order placed at Majestic Deli, located at 200 West 50th Street in Manhattan, for $64.85, which contained David Shalom's ("Shalom") credit card number and signature. Shalom stated that he had never been to the Majestic Deli and that the signature was not his.

2. Grand Jury Hearing

On September 15, 2002, during Dunn's arraignment, he served written notice of his intention to testify before the grand jury (the "Grand Jury") on October 29, 2002. The prosecutor (the "Prosecutor" or the "State") required that, prior to testifying before the Grand Jury, Dunn sign a full waiver of immunity, but Dunn signed the grand jury waiver only as to incidents arising from this case. The Prosecutor refused to accept the document, unless Dunn signed a full waiver of immunity, and the judge presiding over the Grand Jury (the "Grand Jury Judge") ruled that Dunn could not qualify his waiver. The Prosecutor contends that for Dunn to testify before the Grand Jury, he merely needed to sign a full waiver of immunity. Dunn counters that, although he intended to testify even after he refused to sign the immunity waiver, he was never presented the opportunity to testify before the Grand Jury. The Grand Jury Judge never ordered a hearing regarding these competing factual allegations.

3. The Summation

During Dunn's summation, he argued that, throughout the trial, the State had not proven that he "conned" Office Depot and CompUSA. (Id. at 996-97.) Dunn asserted that evidence of his guilt was lacking and that the police investigation was insufficient. Dunn also...