Ellis v. Lee
| Decision Date | 22 March 2021 |
| Docket Number | 17-CV-6834 (CBA) |
| Parties | VINCENT ELLIS, Petitioner, v. WILLIAM LEE, Superintendent, Eastern Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Petitioner Vincent Ellis brings this counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ellis was convicted in Supreme Court, Queens County, following a jury trial, of Burglary in the First Degree (Penal Law § 140.30(4)), Burglary in the Second Degree (Penal Law § 140.25(2)), Robbery in the First Degree (Penal Law § 160.15(4)), Robbery in the Second Degree (Penal Law § 160.10(1)), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(3)), and Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40).1 Ellis argues that his trial counsel was constitutionally ineffective in: (i) failing to object to several statements that the prosecutor made during cross-examination of Ellis and during summation; (ii) failing to prepare Ellis to testify; (iii) failing to share material evidence with Ellis; and (iv) failing to convey the advisability of accepting a plea agreement. Ellis also argues that the manner in which the state court determined his post-conviction relief motion deprived him of due process of law. For the reasons set forth below, Ellis's petition is denied.
Ellis complains of the prosecution having exceeded the bounds of certain pre-trial evidentiary rulings, and of defense counsel's failure to object to the prosecutor's allegedly out-of-bounds statements. Accordingly, a recitation of the procedural history of these rulings, as well as the overwhelming evidence of guilt adduced at trial, is warranted.
The evidence at trial established that Ellis and his co-defendant were caught in the act of burgling an apartment in Queens, which was then occupied by Casin McLean. McLean was romantically involved with Marcus Maragh, who was staying at the apartment on the night of the robbery with his two sons. On July 20, 2009, around 1:45 a.m., officers responded to a burglary in progress at the Queens apartment. Officer Braumann got out of his car and saw the woman who described herself as the 911 caller, Selina Ali, standing in her pajamas on the sidewalk. She told him that she lived in the basement apartment and had heard a loud male voice in the first floor apartment say, "get your hands up, put your hands up in the air," and heard movement in the back of the apartment and a male voice saying "just tie us up, but please don't hurt my family." Officers Braumann and Kurian walked up the driveway to the front door followed by Officer Denofrio. As they went up the stairs to the door, McLean ran out, with her hands tied behind her back, and yelled "they're inside and they have guns." The officers drew their guns and went into the apartment. There, they found Ellis, his co-defendant, Maragh, and Maragh's two teenage sons. Maragh was found with his hands taped; his sons were found restrained with zip-ties. Ellis and his co-defendant were arrested on the scene near the back door of the apartment. Police found latex gloves and firearms near Ellis and his co-defendant. A search of the apartment also revealed multiplefirearms, a bullet proof vest, gloves, ammunition, cut zip ties, a police scanner, and $72,000 in cash. The large sum of cash was in a bag which Maragh had arrived with at the apartment while the burglary was in progress. Maragh testified it was the earnings from his music promotion enterprise, and that defendants said they "came for the concert money." Ellis was arrested on the scene with $4,500 and pieces of jewelry in his pockets. A forensic examination later determined that Ellis's and his co-defendant's DNA were present on gloves recovered from the scene, although there was insufficient DNA on the weapons to be tested.
According to McLean's and Maragh's trial testimony, Ellis and his co-defendant attacked McLean when she arrived at the apartment and forced their way inside. Both were wearing masks and gloves. Ellis and his co-defendant restrained McLean and continued to threaten her with violence. At some point, Maragh then returned to the apartment and was ambushed by the defendants, who attempted to restrain him. After some resistance, the defendants grabbed Maragh's children and threatened them with guns until Maragh allowed himself to be bound with tape. Both defendants proceeded to pocket cash and jewelry from the apartment. McLean identified two of the guns recovered from the apartment as those wielded by defendants. The sound of a police scanner or radio chatter provided a distraction that allowed McLean to escape out the front door. Ellis and his co-defendant panicked: they stripped their masks and gloves, tried to cover some evidence, and attempted to exit through the back of the home when they were apprehended.
Ellis testified on his own behalf and claimed that he and his co-defendant were framed by the complainants. According to Ellis, he and Maragh had a drug dealing relationship and Maragh owed Ellis marijuana that Ellis had purchased but not yet received. When confronted on the streetabout the delayed exchange, Maragh invited Ellis and his co-defendant to the apartment to discuss payment. He offered various firearms in lieu of the drugs, which defendants examined with gloves or socks but rejected. Jewelry was also offered as payment or collateral until the drug transfer was complete. When police arrived at the apartment, Maragh ushered defendants into a back room. Defendants eventually tried to leave the apartment but were stopped by the police before they could exit. Ellis denied bringing guns, gloves, masks, or zip ties into the apartment. His counsel also pointed out that Maragh's children did not testify, that Maragh was likely a dangerous drug dealer, and that no masks were recovered from the crime scene.
Prior to trial, a hearing was held to determine whether Ellis's prior convictions could be used to impeach him if he elected to testify. The prosecution moved to cross-examine him at trial on his two prior convictions, including a 1998 felony conviction of third degree attempted criminal possession of a weapon and a 2005 misdemeanor conviction for seventh degree criminal possession of a controlled substance.2
Concerning the 2005 controlled-substance conviction, the prosecutor asked to go into the underlying facts of the case—namely, that Ellis had sold a controlled substance to an undercover officer in exchange for money on June 18, 2004, in Brooklyn. Defense counsel argued that the sale was never proven, that the counterparty was not an undercover officer, and that the crime of possession alone reflected addiction not moral turpitude. D.E. # 9 ("Record" or "R.") at 2583.) The trial court ruled that the (Id. 263.)
Concerning the 1998 conviction of attempted criminal possession of a weapon in the third degree, the prosecutor sought to ask Ellis about the underlying facts of that case; namely, that on March 6, 1998, in Queens County, Ellis possessed an illegal, defaced, fully loaded firearm. (Id. 253.) Defense counsel argued that Ellis was only eighteen of the time of conviction, that the prejudicial effect of the underlying facts outweighed their probative value, and that the weapon was not actually found on Ellis's person in connection with this prior conviction. After a brief colloquy, the trial judge ruled as to the 1998 weapon conviction that the (Id. 263.) Before ruling as to whether inquiry into the underlying facts would be permitted, the trial judge requested that the People produce the complaint or report that indicated whether the possession was actual or constructive. Accordingly, the trial judge "reserve[ed] decision as to how the People will be allowed to inquire as to the underlying facts as to the circumstances of that 4/29/98 disposition involving defendant Ellis." (Id. 263-64.) The parties' briefing is not clear as to whether the trial judge ultimately made a such a ruling. Without citation, Ellis asserts that "the trial court did not permit the prosecution to inquire about the underlying facts." (D.E. # 1 at 5.) The Respondent asserts that the judge reserved decision, but also implies that the judge ruled that the People could not inquire into the underlying facts of either conviction. (D.E. # 8 at 31, 33). The Record reveals that trial counsel for Ellis and the People were similarly unsure. When defense counsel moved for a mistrial on the basis that the prosecutor had improperly inquired into the underlying facts of the gun conviction, the parties argued about whether the prosecutor had actually done so or whether Ellis opened the door. The trial judge noted that his recollection was that he had reserved decisionas to whether the prosecutor could inquire into the underlying facts of the gun charge. (R. 286.) The prosecutor then informed the court that, "as far as the [1998 conviction], you had ruled, your Honor, after, hearing the information in the criminal complaint that I may ask was the defendant convicted of a felony, attempted [criminal possession of a weapon], no underlying facts." (Id. 287.) The trial judge then denied the motion for a mistrial.
Turning to the allegedly improper statements made at trial. As to the gun conviction, on cross-examination of Ellis, the prosecutor asked:
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